called "a sale or return." When no time is specified within which the buyer must exercise his option a reasonable time is allowed.

171. Sales at a distance and C. O. D. sales, etc.When goods are ordered from a distance title does not pass until they are appropriated to the contract. This usually occurs when the seller delivers them to a proper carrier. This is owing to the fact that a presumption arises that such was the intention of the parties. This presumption may be rebutted, however, by showing that the parties did not intend the title to pass until actual delivery to the buyer. Thus, where the seller takes the bill of lading in his own name, or deliverable to his own order, the presumption is rebutted. The title, as security at least, is retained by the seller. When the price is paid or secured the bill of lading is indorsed to the buyer.

When goods are shipped C. O. D., some courts hold that title passes to the buyer when the goods are received by the carrier. All the courts hold, however, that the buyer is not entitled to possession of the goods until the price is paid.

Some cases hold that where a sale is made of a certain part of a designated and uniform mass, title passes without separating the part sold. This view, however, is incorrect upon principle and not supported by the weight of authority. It should be observed that where two or more persons are tenants in common of a mass of goods, separation is not necessary in order that one of the parties may pass title to his portion. Thus, where several persons own grain which is mixed together in a public warehouse, one may sell his portion and pass title to it without separating it from the mass. He may do this merely by giving a delivery order.

172. When the seller retains possession.-When an absolute sale is made and the buyer allows the seller to retain possession of the property, a presumption of fraud arises in favor of subsequent purchasers and of attaching creditors of the seller who act in good faith. This presumption, however, may be rebutted. The burden of showing good faith and honesty of purpose in allowing the seller to retain possession of the property rests upon the original vendee.

173. Goods to be manufactured.-When a contract is made for goods to be manufactured a presumption arises that title is not to pass until the goods are ready for delivery. This presumption obtains even when the whole of the purchase price is paid at once, or when the buyer exercises a superintendence and control over the work. Some cases hold that title does not pass until acceptance by the buyer of the manufactured article, but by the weight of authority, it passes when the article is put in a deliverable condition.

174. Sales by sample.-When unascertained goods are sold by description the title passes when they are put in a deliverable condition and appropriated to the contract. This rule is applicable to goods sold by sample. The appropriation of the goods must be unconditional. It may be made by the seller with the assent of the buyer, or by the buyer with the assent of the seller.

EXAMPLES

171. A, a merchant in New York City, orders goods of B, a wholesale dealer in Liverpool, and directs that they be shipped by a certain steamship company. B fills the order at once according to directions, the bill of lading being in A's The steamer founders in mid-ocean and the goods are lost. A subsequently sues B to recover the price paid for the

name.

goods. B is entitled to judgment as the risk of loss during transit is A's.

172. A is induced by B's fraudulent representation that he is solvent to sell him goods on credit. B transfers title to the goods to C, who has no notice of B's fraud, in payment of a precedent debt. A seeks to recover the goods from C owing to B's fraud. A is entitled to recover the goods unless C is a bona fide purchaser. Whether C is a bona fide purchaser or not depends upon whether the precedent debt is a valuable consideration for the transfer to him. The decisions upon this point are conflicting. According to the New York rule C is not a bona fide purchaser.1 This rule, however, does not obtain in Illinois 2 nor in Maine.3

173. A sells B a pile of wood for $97 and receives from him in conditional payment his promissory note for the amount. B is given a year within which to remove the wood. Before removing any, however, he becomes insolvent. A is entitled to retain the wood until the price is paid or is tendered to him.1

174. A sells and delivers to B a piano, nothing being said at the time concerning the title to it. C, however, has a chattel mortgage on the piano of which B has no knowledge. Subsequently C takes the piano from B and B sues A for breach of warranty of title. B is entitled to recover. "The vendor of goods and chattels in possession is held, by implication of law, to warrant the title." 5

175. A sells goods to B and ships them to his address. Before delivery, however, B notifies A that he has abandoned business, and A notifies the carrier to hold the goods until he sells them. Before another sale of the goods is made B's creditors levy on them. A is entitled to replevy them. 176. A contracts to sell B certain goods, delivery to be made on a certain date. Prior to that date A delivers half the

1 Barnard v. Campbell, 58 N. Y. 73.

2 Butters v. Haughwout, 42 Ill. 18.

3 Lee v. Kimball, 45 Me. 172.

4 Arnold v. Delano, 58 Mass. 33.

5 Gross v. Kierski, 41 Cal. 111.

• Hershiser v. Delone, 24 Neb. 380.

goods for his own convenience and these goods are destroyed by fire. The loss falls upon A. The title does not pass, since the contract is an entire one.1

177. A sells B a horse for $200. Delivery and payment are to be made on the following day. Shortly after the sale, and before delivery, the horse is killed by lightning. The loss falls upon B. In a few states, however, the courts hold the contrary.

178. A sells B a set of harness for $18. A agrees to make certain changes in the harness and deliver it the next day. Shortly after the sale, and before delivery, the harness is destroyed by fire. The loss falls upon A.

179. A sells B all the corn in a certain crib at 60 cents per bushel, the corn to be measured by B. Title is in A until the corn is measured. In a few states, however, including New York, title passes at the time of the sale.

180. A sells B half the corn in a certain crib, B gets title at once to an undivided half interest in the corn. In such case, B becomes a tenant in common with A of the corn.

181. A sells B a sewing machine on a week's trial and approval. The next day it is destroyed by fire. Since the condition is precedent A retains title, hence the loss falls upon him.

182. A sells C a sewing machine giving him an option to return it after a week's trial if not satisfactory. The next day it is destroyed by fire. Since the condition is subsequent the title is in C, hence the loss falls upon him.

183. A gives B an order for a case of shoes to be shipped by carrier X. B delivers the shoes to X and sends to A the bill of lading which is in his name. The train which carries the goods is wrecked and the shoes destroyed. Title to the shoes is in A at the time of the loss and he may look to X to recover this value.

184. A gives C an order for ten boxes of oranges to be shipped by carrier Y. C delivers the oranges to Y and sends the bill of lading to A, deliverable to C's order. In this case title is retained by C.

1 Corrigan v. Sheffield, 10 Hun (N. Y.) 227.

185. A sells B twenty rugs by sample. The contract provides that they are to be appropriated and set aside in A's store, which is done. Before delivery, however, they are destroyed by fire. Since the title is in B he must bear the loss.

186. A purchases a piano of B on the installment plan, title to remain in B until the price is paid. The instrument is delivered to A and after he has paid half the price it is accidentally destroyed by fire. In this case A must bear the loss. This is an exception to the rule that the one who has title must bear the loss. The title which is in B is in the nature of a chattel mortgage on the piano as security.

187. A purchases of B twenty cows. Delivery and payment are to be made a week later. In the meantime one of the cows dies and a calf is born of one of the cows, and the milk from the cows is sold to C. A owns the calf and the receipts from the milk. On the other hand he must bear the loss of the cow that dies. 188. A contracts with B for the purchase of 900 tons of iron and pays him the price. The contract is executory and the title remains in B until an appropriation is made of specific iron to the contract.1

The decisions upon this point are, however, in hopeless conflict. And in some instances decisions by the same court are conflicting. Thus, it has been held that where a certain number of articles is sold from a designated lot of uniform kind and value, separation is not essential to pass title.2 The same court has held that the sale of 500 bushels of corn to be gathered from a field of sixty acres does not pass title until separation.3

1 Coplay Iron Co. v. Pope, 108 N. Y. 232. See, also, Doane v. Dunham, 65 Ill. 513.

2 Kingman v. Holmquist, 36 Kan. 735, 59 Am. Rep. 604. & Bailey v. Long, 24 Kan. 90.