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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.187

other boat for the buyer, the rea- could not sue as such. The court soning seems to be a statement of admitted that the legal title was general principle.

still in Littlefield but allowed the The whole matter of reason is suit to continue nevertheless, say. complicated by the fact that as ing, “Littlefield took the legal title between the parties themselves, in trust for them (Perry) and the legal result of the agreement

should convey.

Courts of equity is sometimes the same as though in proper cases consider that as title had passed upon mere manu- done which should be. If there facture or acquisition. The rights exists an obligation to convey at which the buyer acquires, as be- once, such courts will sometimes tween him and the seller, are the proceed as if it had actually been same as those of legal ownership, made.” This case, like Low v. Pew, but the courts say the buyer has indicates that although the parties those rights not because he is really intended that title should really owner in the eyes of the pass on its acquisition by the law, but because the seller, who is seller, yet it could not legally do still the legal owner, will not be so. Curran v. Burdsall, 20 Fed. permitted to deny or object to the 835; Rowley v. Bigelow, 12 Pick. buyer's pretense of ownership. (Mass.) 307; Clark v. Slaughter, Thus in Littlefield v. Perry, 21 34 Miss. 65; Hickman v. Dill, 39 Wall. (U. S.) 205, 226, it appeared Mo. Ap. 246; Sherman v. Chamthat Littlefield had transferred to plain Transportation Co., 31 Vt. Perry the ownership of the patent 162; Harvey v. Harvey, 13 R. I. monopoly of a certain invention 598; Thrall v. Hill, 110 Mass. 328. together with all the "improve- Even this right of the buyer, ments” which he should make in through estoppel of the seller to respect to the invention. The title deny it, does not exist if the seller to a monopoly of these improve- has not even by implication war. ments could not pass at time of ranted his title. the agreement because they were 127-In Wheeler's Exrs.

v. not in existence. Later Littlefield Wheeler, 59 Ky. 474, 74 Am. Dec. did make "improvements” and be- 421, the plaintiff, who was a son gan using them himself. Perry of the deceased testator, sought to sued him, for infringement, on the compel his father's executors to allegation that he, Perry, owned distribute to him the property to the monopoly of them. Littlefield which he was entitled by the will. defended on the ground that Perry The Executors answered that it was not owner and therefore 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 la.

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. Wazi. nenski, 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. Capi. tal 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 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."

Cas. #111714; Gabarron v. Kreeft,
L. R. 10 Exch. 274, all ore to be
produced during certain time;
Haynes v. Quay, 134 Mich. 229.

129–118 N. C. 943.
130-L. R. 10 Exch. 274.
131–5 Barn. & Ald. 942.

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.132 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 transaction, as a whole, indicated that such had been the intent of the parties.133

132–5 El. & Bl. 772, 119 Eng. Rep. 669, Affd. 6 El. & Bl. 355, 119 Eng. Rep. 897.

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. 570; Clark v. Spence, 4 Ad. & E. 448; Carruthers v. Paine, 5 Bing. 270; Laidler v. Burlinson, 2 M. & W. 602.

L. 449; Re Revenue Cutter #2, Fed.
Cas. 11714; The Poconoket, 67
Fed. 265; The Yukon River Co. v.
Grotto, 136 Cal. 538; Andrews v.
Durant, 11 N. Y. 35.

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

134-106 U. S. 505.

135-Williams V. Jackman, 16 Gray (Mass.) 514, even though an agent of the buyer had been per mitted to supervise the construction; Edwards v. Elliott, 36 N. J.

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