in part, or a note or memorandum of the contract duly signed, the contract is binding, and the property passes to the vendee, with the risk and under the qualifications already stated.1 1 Whether a delivery of part of an entire stock, lot, or parcel of goods, be a virtual delivery of the whole, so as to vest in the vendee the entire property in the whole without payment, was a point much debated in Hatison v. Meyer,* and left undecided by the court. It was held in that case not to amount to such a delivery, provided any other act was necessary to precede payment or delivery of the residue; but if every thing to be done on the part of the vendor be completed, a delivery of part of a cargo or lot of goods has, under certain circumstances, been considered a delivery of the whole so as to vest the property.0 *To constitute 495* a part acceptance, so as to take the case out of the statute, there must have been such a dealing on the part of the purchaser, as to deprive him of any right to object to the quantity of the goods, or to deprive the seller of his right of lien. But the facts and circumstances which may amount to an acceptance of part of the goods sold,

may be established by parol proof, though in France such latitudinary proof is specially applicable to mercantile cases. Mr. Bell questions the superior policy or safety of the strict rule of evidence required by the English statute of frauds. Bell on the Contract of Sale, Edin. 1844, p. 63—72.

Notfa Maxims, ub. sup. Shep. Touch. 224. Bach v. Owen, 5 Term Rep. 409. A bill of sale of personal property, duly perfected, passes the title as effectually as actual delivery. The enrolment is a substitute for actual delivery, and the vendee is clothed with the constructive possession, and competent to convey. Clary v. Frazer, 8 Gill 4r Johnson, 398. Vide supra, p. 531. S. P.

b 6 East's Rep. 614.

« Slubby v. Hay ward, 2 H. Blacks. Rep. 504. Hammond v. Anderson, 4 Bos. <J- Pull- 69. Sands & Crump v. Tayler & Lovett, 5 Johns. Rep. 395. Parke, J., in Smith v. Surman, 9 Barme. Cress. 561. If an entire contract he partially within the statute of frauds, the whole is void, for an entire agreement cannot be separated. Chater v. Beckett, 7 Term, 201.

has been a fruitful source of discussion, and subtle distinctions have been raised and adopted.*

The vendee cannot take the goods notwithstanding earnest be given, without payment. Earnest is only one mode of binding the bargain, and giving to the buyer a right to the goods upon payment ;b and if he does not come in a reasonable time after request, and pay for and take the goods, the contract is dissolved, and the vendor is at liberty to sell the goods to another person.0 If any thing remains to be done, as between the seller and the buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. *496 This is a well established principle *in the doctrine of sales.0 But when every thing is done by

• In Scotland, it has been held, that where the commodity, like a cargo of grain, requires a protracted course of delivery, and part only had been delivered, the residue, undelivered in point of fact, was not to be deemed delivered in point of law, so as to exempt it from the creditors of the seller. Collins v. Marquis's Creditors, 1 Bell's Com. 173. n. But Mr. Bell seems to think the English decisions, cited in the preceding note, contain the better law.

b Earnest is a token or pledge passing between the parties, by way of evidence or ratification of the sale. Its efficacy was recognized in the civil law; (Inst. 3. 24.) and it was in use in the early ages of the English law, as a means of binding the parties, and completing the sale. GUtneille, I. 10. c. 14. Brae ton, 1. 2. c. 27. It is mentioned in the statute of frauds and in the French code, as an efficient act; but it has fallen into very general disuse in modern times, and seems rather to be suited to the manners of simple and unlettered ages, before the introduction of writing, than to the more precise and accurate habits of dealing at the present day. It has been omitted in the New-York Reeised Statutes.

. Langfort v. Tyler, 1 Salk. Rep. 113. Goodall v. Skelton, 2 H. Blacks. Rep. 316. In Greaves v. Ashlin, 3 Camp. Rep. 426, Lord Ellenborough denied the right of the seller, in such a case, to put an end to the contract It was held in Neil v. Cheves, 1 Bailey's S. C. Rep. 537, that if time and place for delivery be appointed, and the purchaser does not attend, or offer to pay, the vendor may rescind the contract, even though he had previously received part of the purchase money.

e Hanson v. Meyer, G East's Rep. 614. Withers v. Ly6s, 4 Camp. Rep. 237. Wallace v. Breeds, 13 East's Rep. 522. Busk v. Davis, 2 Maule $ Selw. 397. Shepley v. Davis, 5 Taunt. Rep. 617. Simmons v. Swift, 5 the seller, even as to parcel of the quantity sold to put the goods in a deliverable state, the property and consequently the risk of that parcel passes to the buyer; and as to so much of the entire quantity as requires further acts to be done on the part of the seller, the property and the risk remain with the seller.11 The goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before the property can pass.b It is a fundamental principle, pervading every where the doctrine of sales of chattels, that if the goods of different value be sold in bulk and not separately, and for a single price, or per aversionem, in the lnnguage of the civilians, the sale is perfect and the risk with the buyer; but if they be sold by number, weight or measure, the sale is incomplete, and the risk continues with the seller, until the specific property be separated and identified.0

Barnw. $ Cress. 857. M'Ponald v. Hewett, 15 Johns. Rep. 349. Barrett v. Goddard, 3 Mason's Rep. 112. Allman v. Davios, 2 Iredell's N. C. Rep. 12. The rule as drawn from the case of Whitehouse v. Frost, in 12 East, 614, by Mr. Selwyu is, that when goods are sold, if anything remains to be done on the part of the seller, as between him and the buyer, to ascertain the price, quantity or individuality of the goods, before delivery, a right of property does not attach in the buyer.

* Rugg v. Minett, 11 East's Rep. 210. Henderson v. Brown, Newfoundland Rep. 90.

b Austen v. Craven, 4 Taunt. Rep. 644. White v. Wilks, 5 Ibid. 17G. Outwater v. Dodge, 7 Cowen's Rep. 85. Woods v. M'Gee, 7 Ohio Hep. 128.

Vinnins' Comm., in Inst. 3. 24. 3. sec 4. Dig 18. 1. 35. 3. Pothier, Traits du Contrat de Vente, No. 308. Code Napoleon, No. 1585. Civil Code of Louisiana, art. 2433. Zagury v. Furnell, 2 Camp. Rep. 240. Simmons v. Swift, 5 Barnw. <J- Cress. 857. Devane v. Fennell, 2 Iredell's N. C. Rep. 36. By the English statute of 5 & 6 Wm. IV. c. 63, new provisions were introduced for verifying and adjusting the standard models of weights and measures. The Winchester bushel, and all other local measures were abolished, and heaped measures were abolished, and the stone weight was regulated at 14 standard pounds avoirdupois, and a 100 weight at eight such stones, and a ton at twenty such hundred weight, and no one was allowed to sell by any other weights or measures than the Imperial weights and measures prescribed by the act.

(3.) Where no time is agreed on for payment it is understood to be a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse to deliver without payment, and if the payment be not immediately made, the contract becomes void.* If he does deliver freely and absolutely, and without any fraudulent contrivance on the part of the vendee to obtain possession, and without exacting or expecting simultaneous payment, there are a confidence and credit bestowed, and the precedent condition of payment is waived, and the right of property passes.b This rule is understood not

to apply to cases where payment is expected *497 *simultaneously with delivery, and is omitted,

evaded or refused, by the vendee, on getting the goods under his control; for the delivery in such a case is merely conditional, and the non-payment would be an act of fraud, entering into the original agreement, which would render the whole contract void, and the seller would have a right instantly to reclaim the goods.0 The obtaining goods upon false pretences, under colour of purchasing them, does not change the property."1 If it was even a condition of the contract, that the seller was to receive, upon delivery, a note, or security for payment at another time, he may dispense with that condition,

» Comyn's Dig. tit. Agreement, B. 3. Bell on the Contract of Sale, Edin. 1844, p. 20, 21.

b Haswell v. Hunt, cited by Bailor, J., in 5 Term Rep. 231. Harris v. Smith, 3 Serg. <$- Rawle, 20. Chapman v. Lathrop, 6 Cowen's Rep. 110. S. P. 1 Denio, 51.

o Leedom v. Phillips, 1 Ysies' Rep. 529. Harris v. Smith, 3 Serg. $ Rawle, 20. Palmer S. Hand, 13 Johns. Rep. 434. Bainbridge v. Caldwell, 4 Dana's K. Rep. 213. A purchase of goods with a pre-conceived design not to pay for them, is a fraud, and will avoid the sale. No title passes to the vendee. Bristol v. Wilsmore, 4 Barnw. <f Crese. 514. Root v. French, 13 Wendell, 570. Ash v. Putnam, 1 HiWs N. Y. Rep. 302. Vide post, p. 514. n. and ante. p. 484. Cary v. Hotailing, 1 Hill, 311. Kilby v. Wilson, 1 Ryan <$. Moody, 178. Abbots v. Barry, 5 Moor, 98.

d Noble v. Adams, 7 Taunt. Rep. 59.

and it will be deemed waived by a voluntary and absolute delivery, without a concurrent demand of the security.» But if the delivery in that case be accompanied with a declaration on the part of the seller, that he should not consider the goods as sold until the security be given, or if that be the implied understanding of the parties, the sale is conditional, and the property does not pass by the delivery, as between the original parties; though, as to subsequent bona fide purchasers or creditors of the vendee the conclusion might be different.b Where there is a condition precedent attached to a contract of sale and delivery, the property does not vest in the vendee on delivery, until he performs the condition, or the seller waives it; and the right continues in the vendor, even against the creditors of the vendee.0 If the delivery of the goods precedes for a short time the delivery of the note to be given for the price, according to particular usage in that species of dealing, and which usage is known to the buyer, the case falls within the same *principle and *498 the delivery is understood to be conditional. The condition is not deemed to be waived, and the seller will have a right in equity to consider the goods as held in trust for him, until the vendee performs the condition, and gives the note with security; and his right to the goods will be good, as against the buyer and his volun

• Payne v. Shadbolt, 1 Camp. Rep. 427. Carlton v. Sumner, 4 Pick. Rep. 516. Smith v. Dennie, 6 Ibid. 262.

t Hussey v. Thornton, 4 Mass. Rep. 405. Marston v. Baldwin, 17 Ibid. 606. Corlies v. Gardner, 2 Hall's N. Y. S. C. Rep. 345. Reeves v. Harris, 1 Bailey's S. C. Rep. 563. Lucy v. Bundy, 9 JV. H. Rep. 298. Laion S. De Armas, 12 Rob. Louisiana Rep. 598. In this last case alter much learned discussion, it was held, that when the purchaser of a thing sold has acquired as against the seller a right to demand it, the sale is not complete as to third persons until the price be paid and possession delivered; and if neither of them be done, a sale in good faith to a third person followed by payment and delivery will be good. The remedy for the first purchaser, if any, is by an action ex empto for damages.

< Barrett v. Pritchard, 2 Pick. Rep. 512. Bishop v. Shillito, 2 Barme . Sf Aid. 329. n. Strong v. Taylor, 2 HiWs Rep. 32fi.

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