ation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee." not now alter Neither is the second case mentioned in Sheppard's The giving of Touchstone correct law now, so far as it relates to pay- earnest does ment of earnest, for modern cases go to shew that the the property. giving of earnest does not necessarily pass the property in the goods, but simply affords evidence of the conclusion of the bargain, which is a very different thing to the property passing (m). But there are many cases in which the transaction When the may be simply inchoate and incomplete, and not pass property in goods does any property in the goods, as where the contract shews not pass. that there is no intention to pass the property until something has been done by the seller. Thus, in one case, where, on the contract for the sale of goods, it was, according to the usage of trade, the duty of the seller to count them out, and before he did so the goods were destroyed by fire, it was held that the loss fell on the vendor (n). In another case, turpentine was bought at an auction, which, according to the conditions of sale, was to be weighed, and before it was entirely weighed it was destroyed by fire; the Court held that the property had not passed in that portion of the goods which had not been weighed (o). And-to take one more case-where the defendant had contracted for the purchase of the trunks of certain trees, and the custom of the trade was that he should measure and mark the portions he wanted, and that the vendor should then (m) See Ball v. Owen, 5 T. R. 409; Hinde v. Whitehouse, 7 East, 558; Benjamin's Sale of Personal Property, 260-262. (n) Zagury v. Furnell, 2 Camp. 240. (0) Rugg v. Minett, 11 East, 210. 4 When property passes in goods part of an entire bulk. When the property passes in goods to be made. cut off the rejected parts, it was held that no property had passed in the goods until such rejected parts had been actually severed (p). Where goods, part of an entire bulk, are sold, no property passes in them until separated and set apart from the bulk and absolutely appropriated to the purchaser (q). It is sometimes the vendor, and sometimes the purchaser, who has the right of selecting the particular goods from the entire bulk; and the rule is, that "the party who by the agreement is to do the first act which, from its nature, cannot be done until the election is determined, has authority to make the choice in order that he may be able to do that first act; and, when once he has done that act, the election has been irrevocably determined, but till then he may change his mind" (). An instance of when the right of appropriation will be in the purchaser may be found in the case of the sale of a certain number of bricks out of a stack of bricks, and it being provided that the purchaser shall send his cart to take them away. Here the first act has to be done by the purchaser, and he, therefore, has the right of appropriation. He may choose which of them he likes, but as soon as he has once put them in his cart to be fetched away the appropriation is complete and the property has passed. But if in such a case the contract was that the vendor should load them on the purchaser's cart, here the right of appropriation would be in the vendor, for the first act is to be done by him; and in all cases of appropriation by the vendor such appropriation must be assented to by the vendee before the property will pass (s). In the case also of a contract to make any article (though an action would of course lie for the breach of the contract), the property therein will not pass until there (p) Acraman v. Morris, 8 C. B. 449. (4) See Dixon v. Yates, 5 B. & Ad. 313. has been a subsequent appropriation thereof made by the vendor and assented thereto by the purchaser. And so also a grant of goods not in existence, or not belonging either actually or potentially to the grantor at the time, is of no effect, unless the grant is afterwards in some way ratified by him after acquiring a property in them (t). The mere fact of the price not being mentioned in the contract does not prevent the property passing, for it may be either a price to be thereafter agreed on, or what the things are reasonably worth (u). when property Generally, upon this subject, in answer to the ques- General answer tion of when does the property in goods pass, it will be to question of best to found the answer upon what has been previously in goods passes. stated from Sheppard's Touchstone, as varied, as also stated (w), and say that the property will pass where there is a valid and complete contract, or the price has been fully or partly paid; provided that in each of these cases the goods are in existence and no act remains to be done by the vendor, or the vendee has acquired possession of the goods. Contracts as to goods are in many cases required by statute to be by writing. Statute of contracts for By the 4th section of the Statute of Frauds (a) it is 4th section of provided that no action shall be brought whereby to charge any defendant upon (inter alia) any contract applying to not to be performed within one year from the making sale of goods. thereof. This section has already been discussed (y), and it is sufficient here to say that, applying to all contracts not to be performed within a year, it includes contract as to goods. (t) Robinson v. Macdonnell, 5 M. & S. 228. (u) Acebal v. Levy, 10 Bing. 376; Hoadly v. McLaine, 10 Bing. 482. (w) Ante, pp. 70, 71. (x) 29 Car. 2, c. 3. (y) Ante, p. 43, and note the case of Peter v. Compton there referred to on its construction. 17th section of Statute of Frauds. Construction put on this section. Provision in Lord Tenterden's Act in consequence. Writing not section of Distinction between earnest and part payment. By the 17th section of the Statute of Frauds it is enacted that, "no contract for the sale of any goods, wares, and merchandises (z), for the price of £10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." On the construction of this section it was decided by several cases (a) that it did not apply to contracts to make or deliver goods not in existence at the time of the contract, and therefore not capable of delivery or part acceptance at the time of the bargain, and, in consequence, it is provided by Lord Tenterden's Act (b), that such section "shall extend to contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of the contract be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery." This enactment must be read and construed as if incorporated with the Statute of Frauds (c). The memorandum required by the 17th section of the Statute of Frauds has been before touched on in treating of the statute generally (d), but the student will note that writing is not an absolute essential, as there may be instead either part payment, or earnest, or acceptance and receipt. Earnest is a matter quite distinct from part payment, (z) A horse or other animal would be within the expression goods, wares, or merchandise. (a) See them cited in Benjamin's Sale of Personal Property, 74. Scott v. Eastern Counties Ry. Co., 12 M. & W. 33; Harman v. Reeves, 25 L. J. (C.P.) 257. (d) Ante, pp. 44, 45. being some gift or token given by a buyer to a seller, not on account of but quite irrespective of the price; part payment is simply an actual payment of money on account of the price. The giving of earnest is not often a course adopted now, though part payment is frequently (e). amount to On the point of part payment or earnest, also, it What will may be noticed that an actual payment is necessary, so earnest or that what is called in the north of England "striking part payment. off" a bargain, i.e., drawing the edge of a shilling over the hand of the vendor and not paying him the money is not sufficient (ƒ); but delivery of a bill of exchange or promissory note is, because it amounts to payment until dishonoured (g). The acceptance and receipt require a slightly more As to acceptdetailed explanation. ance and receipt under 17th section of Statute The words of the statute are that the buyer shall of Frauds. accept and actually receive" part of the goods sold, and the receipt of the goods implies a delivery which may be either actual or constructive, and the constructive receipt may be evidenced in many different ways, e.g., the delivery of the key of a warehouse (h). The first point for the student to notice upon this acceptance and receipt is that they are two distinct things, which has been well explained by Mr. Justice Blackburn thus: "It seems that this provision is not com- Distinction plied with unless the two things concur, the buyer must between the accept, and he must actually receive part of the goods, receipt as exand the contract will not be good unless he does both. plained by acceptance and Mr. Justice (e) See Benjamin's Sale of Personal Property, 143. (f) Blenkinsop v. Clayton, 7 Taunt. 597. (g) Chamberlyn v. Delarive, 2 Wils. 253; see Benjamin's Sale of Personal Property, 146, 598. (h) Broom's Coms. 406, 407. |