and not paid for. A thief cannot transfer any title to property he has stolen, nor can a purchaser from the thief transfer title to the property.

The Sales Act2 provides that where there has been a delivery of goods and the property has been retained by the seller merely to secure the performance of the contract on the buyer's part, the goods are at the buyer's risk from the time of delivery whether made to him or to his bailee. Where delivery has been delayed through the fault of either party, any loss consequent upon such delay falls upon the party who was the cause of such delay.

§ 43. Determined by Intention. General Rule. The intention of the parties expressed or fairly implied, controls the passing of the title. The law on this subject is well expressed in an English work as follows:

"It is a question depending upon the construction of the agreement; for the law professes to carry into effect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement; not before. In this, as in other cases, the parties are apt to express their intentions obscurely; very often because the circumstances rendering the point of importance are not present to their minds, so that they really had no intention to express. The consequence is, that without absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of construction which, in their nature, are more or less technical. Some of them seem very well fitted to aid the court in discovering the intention of the parties; the substantial sense of others may be questioned. The parties do not contemplate a bargain and sale till the specific goods on which their contract is to attach are agreed upon. Where the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfillment of any conditions; and when by the agreement the seller is to do anything to the goods for the purpose of putting them into a deliverable shape, or when anything is to be done to them to ascertain the price, it is presumed

2 Uniform Sales Act, § 22.

that the parties mean to make the performance of those things a condition precedent to the transfer of the property. But as these are only rules for the construction of the agreement, they must yield to anything in the agreement which clearly shows a contrary intention. The parties may lawfully agree to an immediate transference of the property in the goods, although the seller is to do many things to them before they are to be delivered; and, on the other hand, they may agree to postpone the vesting of the property till after the fulfillment of any conditions they please." 3

This is the prevailing view today of American courts, as seen in the following extracts from leading cases:

"The tendency of the modern decisions is to give effect to contracts of sale according to the intention of the parties, to a greater extent than is found in the older cases, and to engraft upon the rule that the property passes by the contract of sale, if such be the intention, fewer exceptions, and those only which are founded on substantial considerations affecting the interests of parties.

994

"Contracts for the purchase and sale of chattels, if complete and unconditional and not within the Statute of Frauds, are sufficient, as between the parties, to vest the property in the purchaser, even without delivery, the rule being that such a contract constitutes the sale of a thing, and that its effect is, if not prejudicial to creditors, to transfer the property to the purchaser against every person not holding the same under a bona fide title for a valuable consideration without notice." 5

"The agreement did not provide in express terms that payment should be made on delivery. Neither did it provide that payment and delivery should not be concurrent. The rule in such case is that the intent of the parties must control. If it can be inferred from the acts of the parties and the circumstances surrounding the transaction that it was the intent that delivery and payment should be concurrent acts, the title will be deemed to have remained in the vendor until the condition of payment is complied with.'

996

3 Blackburn on Sales.

4 Hurff v. Hires, 40 N. J. L. 581.

5 Hatch v. Oil Co., 100 U. S. 124.

• Empire State Foundry Co. v. Grant, 114 N. Y. 40.

Presumption in Favor of Bargain and Sale. In Terry v. Wheeler, a lumber dealer agreed to deliver a quantity of lumber to a purchaser at a future date and at a particular place. In holding the contract a bargain and sale, the court said:

"The questions which arise in such cases, as to sales, are questions of intention, such as arise in all other cases of the interpretation of contracts; and when the facts are ascertained, either by the written agreement of the parties or by the findings of a court, as they are here, they are questions of law. That the parties to the contract in this case intended to pass the title to the lumber immediately, appears very clear; nor do I suppose that anyone would question it, were it not for the apparent hardship of the case to the purchaser. If the property, instead of being lumber, had been sheep or cows, capable of increase (which follows the ownership), and there had been a sudden and large increase to the flock or drove, before they could be delivered at the point agreed upon, I think no one would have said that the defendant could have discharged his obligation to deliver, and yet retained the increase.

"I entertain no doubt that upon the facts found in this case, the title was in the vendee. The lumber was selected by both parties and designated as the lumber sold to Elmore, except the six hundred pieces which were selected by the parties, and the precise pieces sold designated with as much precision as if the purchaser had marked every piece with his name; that which was sold by measurement was inspected and measured, and the quantity ascertained; the price for the whole was agreed upon and paid, and a bill of parcels receipted and delivered to the purchaser. These facts, I think, vested the title in the purchaser, notwithstanding the agreement of the purchaser to deliver the lumber free of charge, at the cars."

Intention a Question of Fact for Jury. In the absence of express intention, where there is conflicting evidence as to intention, the question is for the jury. It cannot be disposed of as a matter of law, unless the evidence will justify a finding but one way,8

§ 44. Sales C. O. D. The meaning of these letters is

7 25 N. Y. 520.

8 Wigton v. Bawley, 130 Mass. 252.

"collect on delivery". In consignments in this style the title is held to vest in the buyer, and possesion can be retained by the seller until the price is paid. The letters indicate that the sale is the same as if made for cash on delivery, or the same as if made over a counter in a store, where delivery and payment are concurrent conditions. The question of when title passes to goods shipped "C. O. D." has arisen frequently in connection with shipments of liquor into prohibition States, the legality of the shipment depending upon whether the sale was complete in the State of the consignor, or only in the State of the consignee upon payment of the price.

§ 45. Sales F. O. B. Shipments of goods are sometimes made upon an agreement to deliver F. O. B. These letters stand for the words "free on board," and mean that the shipper will bear all the expense of placing the goods on cars, or boat, or other form of carrier, consigned to the vendee, who is thereafter to pay the freight to their destination. Where goods are to be delivered F. O. B. at the point of shipment, the presumption is that the property passes at that time and place.10

§ 46. Classification of Goods as Affecting Title. In determining the question when title passes, it is necessary to divide goods into specific or ascertained goods, and goods non-specific or unascertained.

Specific goods are those upon which the minds of the parties have met. Non-specific goods are such as may have been described, but have not been selected or appropriated to fill the contract of sale. If A buys all the coal in B's coal yard, that is a purchase of specific goods; if he buys one hundred tons out of the larger quantity in the yard, the goods are unascertained and not specific.

§ 47. Sale of Specific Goods. The uniform rule in regard to such a sale is that if it be unconditional, if there be no special agreement or understanding postponing transfer

9 United States v. Adams Express Company, 119 Fed. Rep. 240; Carthage v. Duvall, 202 Ill. 234.

10 Knapp Electrical Works v. New York Wire Co., 157 Ills. 456, 42 N. E. 147.

of title till delivery or payment, title passes at once upon the close of the transaction, and as a consequence the risk immediately falls upon the vendee. The intention of the parties may be shown from circumstances.11

Under the Sales Act,12 unless a different intention appears, in an unconditional contract to sell specific goods in a deliverable state, the property passes when the contract is made, although the time of payment and delivery may be postponed. But where the seller is bound to do something to put the goods into a deliverable state, the property does not pass until the thing is done.

In a Georgia case the facts were that the defendant was a banker and also a cotton merchant. The plaintiff was a customer of the bank. Having cotton to sell he sold it to the banker merchant at an agreed price. Instead of being paid in cash he was given credit for the amount in his bank book. At the time of the sale the cotton was in a local warehouse and was not delivered. Subsequently the banker merchant obtained possession of the cotton and sold it to a third party. Then, while part of the money plaintiff was credited with in the bank remained undrawn, the bank failed. Plaintiff sued to recover his cotton, and on the question whether title had passed, it was held that the intention of the parties was the proper test; if at the time of the transaction a cash sale was intended and the bank credit was so received, title passed.

Title may pass, if such be the agreement before the amount to be paid is ascertained,18 or the price paid, or the goods delivered,14 or though something remains to be done with the goods.15

Not in Deliverable Condition. When the goods are not in a deliverable condition and when the seller is under obligation to do something upon them before delivery, the 11 Callaghan v. Myers, 89 Ill. 566; Morgan v. Laing 28 W. C. Va. 1, 57 Am. Rep. 633.

12 Uniform Sales Act, § 19.

13 Chamblee v. McKenzie, 31 Ark. 155.

14 Burt v. Dutcher, 34 N. Y. 493.

15 Barker v. Freeland, 91 Tenn. 112, 18 S. W. 60