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Some cases, however, are in flat conflict with this presumption of intent and hold that title does not pass unless the intent is clearly evinced.115 A distinction must be noted between these conflicting cases and those in which some other rule of presumption than that referring to separation prevents a holding that title passed, as for instance the rule that where the seller is to put the goods in a deliverable condition title is presumed not to have passed until that is done. 116 There is also a possibility of confusion in the fact already referred to, that some cases appear to hold that title to part of a mass will not pass when, in fact, in the particular case, there is not even a mass identified from which the property described is to be taken. 117

-Non-Fungible Goods.—When the mass is not “fungible", even though all the individual components of it may be of probably equal value, the judicial custom is to hold that a mere sale of a part thereof presumptively indicates no intent to pass title in the mass itself.118

But it is not impossible that parties should create coincident rights of ownership in the same mass, even though it be not fungible, and when the circumstances are such as clearly to demonstrate that they did so intend, even without express statement, the courts will hold that such an ownership in common is created. 119

115–Wood & Co. v. Roach, 52 Ill. Ap. 388, the same result might have been reached upon the Illlnois doctrine that change of possession is necessary to perfect title as against subsequent purchasers; Mercer Natl. Bk. v. Hawkins & Co., 104 Ky. 171; Lawry v. Ellis, 85 Me. 500, hay from a mow; Jeraulds v. Brown, 64 N. H. 606; Keeler v. Goodwin, 111 Mass. 490, decision also put on the ground that plaintiff's action for conversion was precluded by fact that

defendant had a seller's lien on the property.

116—Backhaus v. Buells, 43 Ore. 558; La Vie v. Crosby, 43 Ore. 612; Bailey v. Long, 24 Kan. 90.

177—Kellog v. Frolich, 139 Mich. 612.

118–Gardner v. Suydam, 7 N. Y. 357, bbls. of flour; Commercial Natl. Bk. v. Gillette, 90 Ind. 268; Fordice v. Gibson, 129 Ind. 7; Grocer Co. v. Clements, 69 Mo. Ap. 446; Ferguson y. Northern Bk. of Ky., 14 Bush. (Ky.) 555, 29 Am. Dec. 418, hams.

Specified Part of Larger Mass.-Attention may be called to the distinction between the need of separation from a larger mass for purpose of identification and separation of already identified goods merely for the sake of physical possession. In the latter case there is of course no reason, from the point of view of identification, why title should not pass. Thus in the case of a sale of a stated number of tons of hay to be taken in a layer from the top of a hay-mow, there is nothing indefinite about the identification of the property sold. It is clearly identified as the top layer of the mow to a depth of the number of feet or inches required to weigh the stated amount. Other things, such as an undertaking of the seller to bale it, may raise a presumption that title was not intended to pass, but the identification is sufficient to constitute it a sale of specific property. So also, if one having on hand a quantity of barrels of mackerel sells “all he has” of grades “numbers 1, 2 and 3”, the description is sufficiently definite to allow the usual presumption of intent as to the passing of title of specific property to apply. 120

Goods Not in Existence.-Parties sometimes contract for the sale of goods which may be specified, or merely described, but which the seller does not then own, or which are not even in existence. In such case it is quite obvious that no title can pass at the time the contract is entered into. If the seller does not own the goods, or if there are no goods in existence to be owned, he has nothing in the way of a title—there are no rights of ownership belonging to him—to be transferred. The transfer, if it is to be recognized at all by the courts, can only occur at a time after the seller has acquired an ownership by bringing the goods into existence, or otherwise. 121

119–Hall v. Boston, etc., R. R. Co., 14 Allen (Mass.) 439, 92 Am. Dec. 783, 50 bbls. of flour out of a larger number; Kingman v. Holmquist, 36 Kan. 735; Mertz v. Putnam, 117 Ind. 392; MacKellar v. Pillsbury, 48 Minn. 396; State v. Wharton, 117 Wis. 558, lumber;

Cassinelli V. Humphrey Supply
Co., 43 Nev. 208, 183 Pac. 523, hay.

120—Ropes V. Lane, 9 Allen (Mass.) 502; Lamprey v. Sargent, 58 N. H. 241, sale of all the "hard" bricks from a certain mass of hard and soft ones; Dunkart v. Rineheart, 89 N. C. 354, all of seller's trees of a stated girth.

The same logic applies in the case where something that had been in existence has gone out of objective existence at the time the agreement is made. There being nothing in existence for ownership to apply to, there is no ownership. If, for instance, one person sells to another something which has passed out of existence, the buyer is allowed to recover his money on the ground that he received nothing from the seller. 122*

- Contracts to Sell.-Such an agreement, however, is not wholly void. Persons can enter into an agreement to transfer ownership of anything which is capable of being described. If such an agreement conforms to the legal requisites of contracts generally, it will not be void merely because the person agreeing to sell does not in fact own the thing described, or because the thing is not even in existence. Such a contract is valid and the par

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121-Low v. Pew, 108 Mass. 347; ment. Sheriffs or other designatGibson V. Pelkie, 37 Mich. 380; ed court officers, in making sale Emerson V. European etc. R. R. of property of judgment creditors, Co., 67 Me. 387, 24 Am. Rep. 39; if they act in accord with law, can Taylor v. Barton-Child Co., 228 transfer ownership from Mass. 126, 117 N. E. 43.

judgment debtor to the purchaser, 122-Martin v. McCormick, 8 although they themselves have no N. Y. 331; Allen v. Hammond, 11 title. As a matter of fact, howPeters (U. S.) 63; Gibson v. Pelkie, ever, such officers act as agents 37 Mich. 380.

of the real owner and, hence, are There is an apparent exception not really within the rule. to the rule, that one who has no Persons acting in the capacity title himself can not give one, in of agent for an owner can, of the case of sales by order of court course, make legally effective or in pursuance of legal enact- transfers of his ownership.

*See Uniform Sales Act, Section 7, (1), (2).

ties are liable for its breach as in any other contract. Contracts of sale of wheat, as made on the various exchanges, often before the wheat described is grown, and sales of cotton not yet ready for the picking, are very frequent instances of contracts to pass title to something not even in existence at the time. These contracts are universally upheld as valid.128 Even if the agreement is in form a present transfer, rather than a contract to transfer title in the future, the courts will nevertheless give it effect as a contract to transfer when possible.124

-Acquisition of Goods.—The question then arises, what is necessary to accomplish the transfer of title when the seller does become owner and, hence, able to pass it?

If it is clear that the parties had in mind that it should pass the moment the seller himself acquired it, there seems to be no reason why that intent should not be given legal effect. There is very little authority on this particular point. There is plenty of authority that it does not in fact pass coincidently with the seller's becoming able to pass it. But this practically all turns on the assumption that the parties did not intend it to pass then. It does not settle the question whether it could pass then if they clearly so intended. The case of Low v. Pew125 is treated by commentators as authority for the proposition that title can not pass by virtue of the seller's mere acquisition of it, even if the parties so desire. In that case the facts were that the parties had entered into a contract reading, “We, John Low & Son, hereby sell, assign and set over unto Alfred Low & Co. all the halibut that may

123—Hamil v. Flowers, 184 Ala. hurst, 127 Ga. 298; Forsythe Mig. 301, 63 So. 994; Robinson v. Hirsch- Co. v. Castlen, 112 Ga. 199. felder, 59 Ala. 503; Baker v. Leh

124—Bates v. Smith, 83 Mich. man, Weil & Co.; 186 Ala. 493, 65

347; Low v. Pew, 108 Mass. 347. So. 321; Wright v. Vaughn, 137 Ga.

125–108 Mass. 347. 52, 72 S. E. 412; Watson v. Hazel

*See Uniform Sales Act, Section 5, (1), (2), (3), 76, "Future goods”.





be caught by the master and crew of the schooner Florence Reed, on the voyage upon which she is about to proceed

at the rate of five cents and a quarter per pound for flitched halibut, to be delivered to said Alfred Low & Co. as soon as said schooner arrived The buyer paid $1,500 on account. Before the vessel got back from her voyage the sellers had become bankrupt and their assignee took possession of the schooner's cargo when she did arrive. A large part of her cargo, however, must have been caught before the bankruptcy. The buyers brought an action of replevin on the ground that title was in them. The court said that title could not have passed when the contract was entered into because there was then no title existing, and that if the contract were to be valid at all it must be considered as an agreement to pass title at a later date. The court then held simply that title had not passed to the buyers. As it seems a fair presumption from the form of the contract that the parties intended to pass title as soon as it should be possible, the interpretation of the decision is that such intention will not be given effect by the courts. It is often said that there must be a fresh demonstration of intent to pass title after the seller has become able, by acquisition, or manufacturer, to pass it.126

126-In Mucklow v. Mangles, 1 Taunt. 518, however, is given a very practical reason which indicates that the rule is based on the seller's probable lack of intent to pass title by merely manufacturing goods according to the contract. In this case the seller had practically completed boat which accorded with the specifications of his contract of sale, had received money from the buyer on account of the work and had even gone so far as to paint the buyer's name


the boat. Nevertheless the title, so the court

held, had not passed. "A tradesman”, said the court, “often finishes goods, which he is making in pursuance of an order given by one person, and sells them to another. If the first customer has other goods made for him within the stipulated time, he has no right to complain; he could not bring trover against the purchaser for the goods so sold. The painting of the name on the stern in this case makes no difference.” Inasmuch as, in this particular case, the seller, who had become a bankrupt, could not have built an.


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