failing clearly to express their intention, certain rules of construction are adopted by the courts. The law indulges in the presumption that no title has passed to the goods, where something remains to be done to put them in shape for final delivery and until this thing to be done is accomplished. But the fact that the price has not been fixed, would not of itself alone prevent the title from passing. So the presumption last spoken of, indulged in by the law, may be overcome, if, notwithstanding the fact that something remained to be done, the parties had intended a sale nevertheless." The rule is restated in Graff vs. Fitch," as follows: "While the general doctrine on this subject may be regarded to be, that where some act remains to be done in relation to the articles which are the subject-matter of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention to make an absolute and complete sale, the property does not pass to the vendee, until such act is performed, yet where it appears, that the parties intended that the sale should be complete before the articles sold are weighed or measured, the property will pass before this is done." Where the seller, by the terms of the contract, agrees to forward the goods to the buyer, the property right in the goods, and the risks of loss remain in the seller, and until the goods are transported to the buyer, the title remains in the seller and only passes on delivery to the buyer. SECTION 26. SALE OF SPECIFIC CHATTELS UNCONDI TIONALLY. It is the general rule of law, that when a sale and delivery is made of specific chattels without condition, Yockey vs. Norn, '101 Mich., 193. • 58 Ill., 373. title passes thereby to the buyer and the law presumes the contract is an actual sale, even in advance of delivery, if the thing sold is ready for delivery. The fact that the seller retains the goods in his possession for security does not affect the presumption of sale, unless the sale was understood to be on a cash payment, operating as a condition precedent, but even in that case, it is sometimes held that the title is transferred as soon as the agreement is reached, and that the goods are held at the risk of the buyer, and that the seller is merely asserting his lien in retaining possession until the price is paid. If a party purchases an entire lot of cigars of another, and the vendor, after receiving payment, takes the purchaser to the factory, and says: "Here are your cigars," handing to him several boxes, and the purchaser pays for the stamps to go upon the boxes, and the purchaser employs the hands in the factory to stamp them, this being as complete a delivery as the vendor can make, will be sufficient to pass the title against an attaching creditor of the vendor. SECTION 27. SALE OF SPECIFIC CHATTELS CONDI TIONALLY. It is always within the province of the parties to a sale, to regulate the time when the title shall pass, and if they annex a condition to the contract, that the goods are to be first put in a deliverable state, or, that the purchaser shall make payment, or that the performance of some other stipulation be had as a condition precedent to the title vesting in him, the title will not pass until the condition is performed." 'Beardsley vs. Beardsley, 138 U. S., 262. Straus vs. Menzesheimer, 78 Ill., 492. • Whitney vs. Eaton, 15 Gray, (Mass.,) 226. SECTION 28. SALE OF CHATTELS NOT SPECIFIC. It is quite essential to the sale that the goods to be sold, must be separated from other goods so that they may be identified, in order that title pass.10 The same rule applies to goods that are to be manufactured, title does not pass until goods are completed and made ready for delivery. It is the general rule also, which, however, we find cannot be reconciled with the conflicting rule of certain other courts, that where there is a sale of a quantity of goods from a uniform mass, an appropriation is necessary of the certain specified portion of the mass in order that the purchaser may be vested with authority." When the appropriation of the thing to be sold is subsequently made, then the agreement to sell, becomes a sale in fact, when the parties expressly or impliedly assent to the appropriation as made." 12 It is quite possible that there be a sale of an unfinished chattel, if the parties agree that the title pass at once, even though the vendor is to complete the chattel subsequent to the sale as made.13 This is another case where the real intention of the parties will govern. SECTION 29. SALE OF CHATTELS NOT YET IN EXIST ENCE. A contract may be made for the sale of goods, not yet in existence, but the contract does not ordinarily become a sale, until the goods are manufactured, produced or grown and the seller's complying in other particulars with the order. It is deemed sufficient, according to the greater weight of authority, for the purpose of passing title to the goods, for the seller to 10 Guy vs. United States, 25 Ct. Cl., 61. "Ropes vs. Lane, 9 Allen (Mass.), 502; Morrison vs Woodley, 84 Ill., 192. For the opposite view see the case of Whitehouse vs. Frost, 12 East, 614. 12 Moody vs. Brown, 34 Me., 107. 13 Thorndike vs. Bath, 114 Mass., 116. produce the goods as specified, and to tender or offer delivery of the same. The acceptance by the buyer is not required." The seller could recover for the goods as soon as tender is made, if he elects so to do, but might, on refusal of purchaser to accept, make a resale of the goods and sue for the difference. There is some authority, however, to the effect that acceptance, in such case, is necessary to pass title. Where goods are in process of manufacture or construction the title may pass by stipulation, if the parties so agree, before the goods are completed. But the intention that the title was to pass must be clearly shown, and the mere fact that installments on the purchase price are paid from time to time, or that the goods are made under the superintendence of the buyer, would not alone show an intention to pass title before completion of the subject matter of the sale, but if by taking all the stipulations together, the intention to pass title is clear, the property will vest in the purchaser during the progress of the work." The general rule, as to when title passes to things that are to be grown, is stated as follows by the Colorado Court: The contract was one for producing and selling certain alfalfa crops, the seller being obliged by the contract to raise, cut, stack and measure the alfalfa; this he did and a recovery was allowed on such, showing the title having been held to have passed when the terms of the contract were fulfilled. The court said: "The weight of authority is, that the appropriation by the seller of the article when completed in accordance with the terms of the contract, passes the title without the subsequent assent of the purchaser, and an action for the agreed price can be maintained." 18 24 Shawhan VS. Van Nest, 25 Ohio St., 490. ♫ Briggs vs. A Light-Boat, 7 Allen, Mass., 287. 16 Colorado Springs Live Stock Co. vs. Godding, 20 Colo., 249. SECTION 30. RESERVATION OF JUS DESPONENDI. Whatever the presumptions are that the court may indulge in, as to the intention of parties from the circumstances or condition under which the sale is made, these inferences will be repelled, by it being shown that the parties in reality intended the contrary. Therefore, where the seller shows plainly an intention not to pass title to the goods, even though he may have put the article in a deliverable state, or even placed it in the hands of the carrier for transportation, the title to the goods does not pass. Rules as to presumed intention give way where the real intention is shown by positive acts of the parties. The reservation of the right of title in the goods may be shown, by the seller having the bill of lading so drawn as to make the goods deliverable to his own order or to his agent, with a draft attached to be accepted by the purchaser. This right, called the reservation of the jus desponendi, is the absolute right of disposal of the goods, and is something more than a mere lien. So the transfer of the bill of lading, by the shipper on a sale or pledge of the property shipped, is a symbolical delivery of the property. The shipper, when he is the owner of the property shipped, does not lose his title by inserting the name of the consignee when he ships the property. The title still remains in him unaffected. In such a case, the consignee becomes the factor or commission merchant of the shipper." When the bill of lading is accompanied by a draft, made payable at sight and drawn against the purchaser, there must be acceptance, and payment of the draft, before the purchaser can claim the bill of lading. The effect of reservation of jus desponendi is to compel early payment by retaining title until payment. Incidentally it determines when 17 Michigan Central R. Co., vs. Phillips, 60 Ill., 190. |