an instance, and that the most usual one, of such an act, that is, the seller's delivering (i.e., transferring the possession under s. 62 (1)) the goods selected to the buyer or a carrier "in pursuance of the contract," i.e., under the buyer's authority. "The goods" must, of course, be in all respects according to the contract (g), as provided in sub-s. 1, otherwise the attempted appropriation is ineffectual to pass the property. Whether named by the buyer or not.-These words must be read in connection with the words "in pursuance of the contract." For, if a particular carrier be specified, the delivery must be made to him (r). And, in spite of a delivery to a carrier, it may be "pursuant to the contract" that the seller should deliver at the destination; in this case, the property will not pass till arrival (s). The seller would, it is conceived, be reserving "the right of disposal" up to that time. And does not reserve the right of disposal.-The delivery may be conditional, as where the seller reserves the right of disposal under s. 19 (1). In this case, "however definite and complete ... may be the determination of election on the part of the seller, where the contract has left him the choice of appropriation, the property will not pass if his acts show clearly his purpose to retain the ownership, notwithstanding such appropriation" (t). The presumption is founded on the fact that, where a carrier intervenes, the seller, by delivery, loses his lien under s. 43 (1) (a), and, consequently, it is his interest that the property should not pass. Therefore, where he reserves the right of disposal, an intention on his part to preserve the right of property is presumed (u). ILLUSTRATIONS. 1. B. orders goods of A. to be despatched to him at a distance. A. sends them off by C., a carrier, in whose hands they are damaged. B. may sue C., as he is the owner of the goods which became his when A. sent them off, and thereby finally appropriated them according to his authority. Fragano v. Long (1825), 4 B. & C. 219. 2. B. orders of A. a quantity of goods, and sends his own ship for them. A. ships the goods on B.'s behalf, without reserving any right of disposal. The goods are B.'s on shipment. Ogle v. Atkinson (1814), 5 Taunt. 759. 3. A. agrees to sell B. 100 quarters of barley out of the bulk in A.'s granary, B. to send sacks therefor, and A. to fill them. B. sends 200 (g) Per Parke, B., in Wait v. Baker (1848), 2 Ex. 1. See, in America, a case directly deciding the point: Ardsberg v. Latta, 30 Iowa, 442. (r) See, in America, Hills v. Lynch, 26 N. Y. Sup. Ct. 42; Wheelhouse v. Parr, 141 Mass. 593; and Ullock v. (t) Benj. p. 345. (u) See Blackb. p. 142. S. 18, S. 18, Rule 5 (2). Reservation of right of disposal. S. 19. sacks, and A. fills 155. The barley in the 155 sacks has been unconditionally appropriated to B., as A., by filling the sacks, exercised his election to appropriate; but B. has no right to the barley sufficient to fill the 45 sacks. Aldridge v. Johnson (1857), 7 E. & B. 885 (x). 19. (1.) Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. (2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal. (3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. The effect of the three sub-sections to this section may be thus shortly stated: The seller's reservation of the right of disposal subject to conditions makes the transfer of the property, notwithstanding delivery under s. 18 (2), dependent on those conditions (sub-s. 1): Taking the bill of lading to order is primâ facie such a reservation (sub-s. 2): The transmission of the bill of lading and bill of exchange (x) See also Langton v. Higgins there was a contract for an entire bulk or cargo, which did not come into existence till completion. together to secure the latter, imposes the condition that the bill of exchange be honoured (sub-s. 3). The two latter sub-sections, of course, apply only to cases of shipment. Sub-s. 1 applies generally. S. 19. The seller may, by the terms of the contract or appropria- S. 19 (1). tion, reserve the right of disposal. This sub-section should probably be construed reddendo singula singulis; that is, the word "contract" should be attributed to "specific goods," and "appropriation" to "where goods are subsequently appropriated." It says, in effect, that when the goods are specific or subsequently ascertained, a further condition to the transfer of the property may be imposed by the seller. This is in accordance with the previous law. The provision with regard to specific goods would appear to be a further explanation of the law laid down in s. 17 (1), ante, p. 113, and may be illustrated by a contract of sale of specific goods to be paid for on or before delivery (y). On the general rule in this sub-section, Mr. Benjamin makes the following remarks (2) :-"It has already been shown that the rules [i. e., in s. 18] for determining whether the property in goods has passed from seller to buyer are general rules of construction, adopted for the purpose of ascertaining the real intention of the parties, where they have failed to express it. Such rules, from their very nature, cannot be applied to cases where exceptional circumstances repel the presumptions or inferences on which the rules are founded. However definite and complete, therefore, may be the determination of election on the part of the seller, when the contract has left him the choice of appropriation, the property will not pass if his acts show clearly his purpose to retain the ownership, notwithstanding such appropriation." Modes by which the seller may The learned author then goes on to show that a seller may take a bill of lading for the goods shipped to his own order or that of his agent, and then do either one or other of two things, reserve it. viz., (1) send it to his agent with instructions not to transfer it to the buyer, except on payment, this is the case mentioned in sub-s. 3; or (2) sell a bill of exchange drawn on the buyer to a third party, to whom he also transfers his bill of lading to be transferred to the buyer on payment of the bill of exchange. This is contained by implication in sub-s. 1, but does not to fall under sub-s. 3. appear (y) Per Bayley, J., in Bishop v. Shillito (1819), 2 B. & A. 329, n. (a) ; Cohen v. Foster (1892), 61 L. J. Q. B. (*) p. 345. S. 19 (1). S. 19 (2). "Now in both these modes of doing business, it is impossible to infer that [the seller] had the least idea of passing the property... at the time of appropriating the goods to the contract. So that, although he may write . . . and specify the packages and marks by which the goods may be identified, and although he may accompany this with an invoice, stating plainly that these specific goods are shipped for [the buyer's] account, and in accordance with [his] order, making his election final and determinate, the property in the goods will, nevertheless, remain in [the seller], or in the [third person], as the case may be, till the bill of lading has been indorsed and delivered up to [the buyer]" (z). The question in all these cases, of course, is, Has the seller evinced an intention of passing the property? not Has he committed a breach of contract (a)? In Wait v. Baker (b), for example, the seller by the acts he did, i.e., transferring the bill of lading elsewhere, although cash was tendered, was committing a breach of contract; and yet it was held that the property did not pass, his intention being clear that it should not. When the intention of reserving the right of disposal is clear, it is immaterial that the invoice of goods shipped states them to be shipped on account of and at the risk of" the buyer; or that (on shipment on the buyer's own ship) the bill of lading states the goods freight free, as being the buyer's own property (c). And when the bill of lading is taken to the buyer's order, and sent to him unstamped, the seller, by keeping the stamped copy in his possession, may reserve the right of disposal (d). Goods deliverable to the order of the seller, &c.-By this sub-section the right of disposal is only prima facie reserved by the seller's taking the bill of lading to his own order or that of his agent. It follows Mr. Benjamin's third and fourth rules (e). "If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so, not as agent or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself the power of disposing of the property; and (2) Benj. p. 346. (a) Per Cur., in Browne v. Hare (1859), 4 H. & N. 822; per Bramwell, L.J., in Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. at P. 170. (b) (1848), 2 Ex. 1. (c) Turner v. Trustees of Liverpool Docks (1851), 6 Ex. 543. (d) Moakes v. Nicholson (1865), 19 C. B. N. S. 290. (e) Benj. p. 370. that, consequently, there is no final appropriation, and the property does not, on shipment, pass to the purchaser" (ƒ). The seller is primâ facie deemed, etc.-The words in italics in the above judgment show the limitation to be placed upon the rule, and partly illustrate the words "primâ facie" in this sub-section. The question is, did the seller, by taking the bill of lading in that form, intend to preserve control over the goods, or not? The question is one for the jury (g). Thus, as in Joyce v. Swan (h), the seller may be only uncertain of the buyer's meaning in grumbling about the price, and, as a method of precaution only, and in case the buyer intends to refuse the goods (there being, in fact, no such intention) may take the bill of lading to his own order. See also Browne v. Hare (i). In such a case he is deemed to be acting as the buyer's agent only. So the facts of the case may otherwise show that the seller, in taking the bill of lading in this form, did not intend to reserve the right of disposal; as, e.g., when he indorses it, and transmits it, to the buyer direct (k), or (when so indorsed) even to his own agent (). The Court of Appeal, in Ex parte Banner (m), stated the rule "as perfectly settled, that if a consignor in such a case wishes to prevent the property in the goods and the right to deal with the goods while at sea from passing to the consignee, he must, by the bill of lading, make the goods deliverable to his own order, and forward the bill of lading to an agent of his own. If he does not do that he still retains the right of stopping the goods in transitu; but subject to that right the property in the goods, and the right to the possession of the goods, is in the consignee." "Where the consignor sends these documents direct to the consignee, that ought to lead to the inference, and only properly lead to the inference, that he intended the consignee should have at once the disposal of the property, and possession of the goods consigned, leaving to him, as a matter simply of obligation under the contract, to return the bills of exchange accepted, not as a condition precedent to the property vesting, but simply as a matter of contract” (n). The right of disposal is not affected by the seller's sending (f) Per Cotton, L.J., in Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. at p. 172. (9) Van Casteel v. Booker (1848), 2 Ex. 691. (k) (1864), 17 C. B. N. S. 84. 7 M. & G. 882; Key v. Cotesworth (1) Browne v. Hare (1859), 4 H. & (m) (1876), 2 Ch. D. at p. 288. S. 19 (2). |