But, at any rate, whether it be because title can not be passed by the seller's mere acquisition of it, even though the parties so intend, or because it will not be assumed that the parties did so intend, the overwhelming weight of authority is that title does not pass merely as a result of the seller's acquisition of the property. The reason is not at all clear, but the rule is settled.127 other boat for the buyer, the reasoning seems to be a statement of general principle. The whole matter of reason is complicated by the fact that as between the parties themselves, the legal result of the agreement is sometimes the same as though title had passed upon mere manufacture or acquisition. The rights which the buyer acquires, as between him and the seller, are the same as those of legal ownership, but the courts say the buyer has those rights not because he is really owner in the eyes of the law, but because the seller, who is still the legal owner, will not be permitted to deny or object to the buyer's pretense of ownership. Thus in Littlefield v. Perry, 21 Wall. (U. S.) 205, 226, it appeared that Littlefield had transferred to Perry the ownership of the patent monopoly of a certain invention together with all the "improvements" which he should make in respect to the invention. The title to a monopoly of these improvements could not pass at time of the agreement because they were not in existence. Later Littlefield did make "improvements" and began using them himself. Perry sued him, for infringement, on the allegation that he, Perry, owned the monopoly of them. Littlefield defended on the ground that Perry was not owner and therefore could not sue as such. The court admitted that the legal title was still in Littlefield but allowed the suit to continue nevertheless, saying, "Littlefield took the legal title in trust for them (Perry) and should convey. Courts of equity in proper cases consider that as done which should be. If there exists an obligation to convey at once, such courts will sometimes proceed as if it had actually been made." This case, like Low v. Pew, indicates that although the parties really intended that title should pass on its acquisition by the seller, yet it could not legally do So. Curran v. Burdsall, 20 Fed. 835; Rowley v. Bigelow, 12 Pick. (Mass.) 307; Clark v. Slaughter, 34 Miss. 65; Hickman v. Dill, 39 Mo. Ap. 246; Sherman v. Champlain Transportation Co., 31 Vt. 162; Harvey v. Harvey, 13 R. I. 598; Thrall v. Hill, 110 Mass. 328. Even this right of the buyer, through estoppel of the seller to deny it, does not exist if the seller has not even by implication warranted his title. 127-In Wheeler's Exrs. V. Wheeler, 59 Ky. 474, 74 Am. Dec. 421, the plaintiff, who was a son of the deceased testator, sought to compel his father's executors to distribute to him the property to which he was entitled by the will. The Executors answered that it was claimed by one X who had Manufacture.-Neither, for one reason or another, will title be held to have passed because of mere manufacture of goods according to the contract by the seller.128 bought it from young Wheeler before the father's death, though after the will had been made. The plaintiff did not deny that he had made an agreement whereby he had "sold all my individual interest of all the personal property now in the possession of my said father." The court, however, held that nothing could be sold which the seller did not own and the buyer in this case had acquired no title to anything by his purchase. Again, in Welter v. Hill, 65 Minn. 273, it appeared that X had made what purported to be a present sale to plaintiff of flax which X expected to grow upon a particular field, but for which the seed had not even been sown at the time. When the crop had been raised as agreed, it was seized by a creditor of the seller, X. The plaintiff, as buyer, claimed title in himself but the court rejected the contention, saying, "When did the title to the property pass? It did not pass when the bill of sale was made, because it was not then in existence." As nothing subsequent had been done to pass it, it had not passed when the creditor's levy was made. McCall v. Hampton, 98 Ky. 166, 56 Am. St. 335; Elliott v. Leslie, 124 Ky. 553, 124 Am. St. 418; Skipper v. Stokes, 42 Ala. 255, 94 Am. Dec. 646; Herbert v. Bronson, 125 Mass. 475 (future wages); Farmer's National Bk. v. Coyner, 44 Ind. Ap. 335 dictum; Gile v. La Salle, 89 Ore. 107, 171 Pac. 741. In Wheeler v. Becker, 68 Ia. 723, 28 N. W. 40, however, a mortgagee of property not in existence at the time was allowed to bring an action of replevin against attaching creditors, on the ground that the mortgage took effect when the property came into the seller's ownership. Accord, Morris v. Hix, 74 Ia. 526, 38 N. W. 395; approved, though not in point, McMaster v. Emerson, 109 Ia. 284, 80 N. W. 389; In Maskelinski v. Wazinenski, 20 N. Y. Supp. 533, the buyer of property not owned by the seller was allowed to set up title to the property as against the seller, when the latter did acquire it, without any other pretense of title's having been transferred. This was put upon the ground that title had passed, or at any rate the seller had waived his right to deny it. 128-Fordice v. Gibson, 129 Ind. 7, "No title passes until the thing is completely done and notice given to the vendee, or some act done by the vendor designating it as the article sold, either by setting it apart, marking it or some other similar act." Robbins v. Chipman, 1 Utah 335 dictum; Heiser v. Mears, 120 N. C. 443 dictum; Updike v. Henry, 14 Ill. 378; West Jersey R. R. Co. v. Trenton Car Works, 32 N. J. L. 517, even though payment be made in advance; Edwards v. Elliott, 36 N. J. L. 449, payment for vessel in installments; First Natl. Bk. of Marquette v. Crowley, 24 Mich. 492; Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 60 Am. Rep. 162; Rev. Cutter #2, Fed. When the goods contracted to be sold are the entire output of a factory it does seem that their manufacture indicates an intent to pass the title to them under the contract more certainly than in cases where the manufacturer could dispose of the particular thing manufactured and then make another one to satisfy his contract with the buyer. In Williams v. Chapman,129 the seller had contracted to sell the entire output of his mill for a certain time and the court held, without any discussion of the matter, that title passed to the goods produced during that time as soon as they were completed. On the other hand, in Gabarron v. Kreeft,180 the seller had contracted to sell all the ore produced by a certain mine. Payment had been made in advance for the particular cargo of ore in question. The court held, again without discussion, that the title did not pass when the ore was produced. This very conflict, however, indicates that in such cases at least the title can pass on acquisition, or manufacture, if the parties do in fact so intend. -Payment During Course of Manufacture.-Another field of conflict is the question whether, when goods to be manufactured are to be paid for in instalments, such payment effectuates a passing of title to so much of the goods, or of the particular chattel, as has been manufactured at the time. A much cited authority on this point is Woods v. Russell.181 In this case it appeared that one Paton had contracted to build a ship for defendant, who was to pay in instalments at certain points of progress. After three payments had been made and before the ship was finished a question of title arose. There was very clear evidence, other than the mere payments, that the builder had intended to pass title to so much as was done at the time and the court accordingly Cas. #111714; Gabarron v. Kreeft, 129-118 N. C. 943. 130-L. R. 10 Exch. 274. held that title had passed. But the court said also, in regard to the payments, "The payment of these instalments appears to us to appropriate specifically to the defendant the very ship in progress, and to vest in the defendant a property in that ship, and that, as between him and the builder, he is entitled to insist upon the completion of that very ship, and that the builder is not entitled to require him to accept any other." The holding that title to so much as is done passes as it comes into existence, and, consequently, that title to the goods is in the buyer at the time of completion is nevertheless only a legal presumption from the circumstances. The fact that title is thus held to have passed when work is paid for in instalments and not to have passed in cases where there is no partial payment, is not due to any peculiar legal effect of part payment, but to the belief of some courts, particularly those of England, that payment and its acceptance indicates a real intent that so much of the work as has been done shall belong to the buyer. This is clearly indicated in Wood v. Bell.182 One Joyce had agreed to build for plaintiff a ship of a certain description, for which plaintiff was to make payment in instalments at various times, regardless of the actual stage of completion of the work. Before the ship was completed, or in any way expressly indicated as belonging to plaintiff, Joyce became bankrupt and the question of title arose. The court said, "The property does not pass merely by its being manufactured, but only when it is the intention of the parties that it shall pass." It held that title was in the plaintiff, not because the work was to be paid for in instalments, nor because the ship was of a peculiar construction particularly required by plaintiff, nor because plaintiff's name had been punched in the keel, but because all the circumstances of the 132-5 El. & Bl. 772, 119 Eng. Rep. 669, Affd. 6 El. & Bl. 355, 119 transaction, as a whole, indicated that such had been the intent of the parties.133 In America the fact that work is to be paid for in installments as it progresses, or that it is under the supervision of the seller, or other like circumstances, is not, as a general rule, held to indicate any intent to pass title as the work is completed. In Clarkson v. Stevens,184 the Supreme Court decided that title to a certain vessel to be manufactured for the United States government had not passed to the government on completion. In reaching this conclusion the court said, "The courts of this country have not adopted any arbitrary rule of construction as controlling such agreements, but consider the question of intent, open in every case, to be determined upon the terms of the contract, and the circumstances attending the transaction. And such seems to us to be the true principle. According, we are of opinion, that the fact that advances were made out of the purchase money, according to the contract, for the cost of the work as it progressed, and that the government was authorized to require the presence of an agent to join in certifying to the accounts, are not conclusive evidence of an intent that the property in the ship should vest in the United States prior to final delivery.''135 133-Moody v. Brown, 34 Me. 107; Butterworth v. McKinley, 11 Humph. (Tenn.) 206; Sandford v. Wiggins Ferry Co., 27 Ind. 522; Scudden v. Calais Steamboat Co., 1 Cliff. 370; Clark v. Spence, 4 Ad. & E. 448; Carruthers v. Paine, 5 Bing. 270; Laidler v. Burlinson, 2 M. & W. 602. 134-106 U. S. 505. 135-Williams v. Jackman, 16 Gray (Mass.) 514, even though an agent of the buyer had been permitted to supervise the construction; Edwards v. Elliott, 36 N. J. L. 449; Re Revenue Cutter #2, Fed. In the case of The John B. Ketcham, 97 Fed. 872, the court, while admitting that intention would govern, held that the parties had no intention to pass title at the payment of installments even though engines belonging to the buyer had been worked into the ship. For the manufacturer to incorporate property of the buyer in something which fits the de |