the order on the warehouseman, and paying the price, has been held to be a complete and executed contract, so as to pass the property and the risk of the articles sold.» The mere communication of the vendor's order on a wharfinger or warehouseman for delivery, and assented to by him, passes the property to the vendee.b Even the change of mark on bales of goods in a warehouse, by direction of the parties, has been held to operate as an actual delivery of the goods.' A delivery of part of a parcel of articles selected and purchased without any objection at the time as to the delivery of the residue, takes the case out of the statute of frauds as to the whole of the goods so purchased.d The case would be different if the purchaser paid for the articles delivered, and left the residue undelivered and wholly unpaid for.0 If the vendor takes the vendee within sight of ponderous articles, such as logs lying within a boom, and shows them to him, it amounts to a delivery, though the vendee should suffer them to lie within the boom, as is usual with such property, *until he have occasion *502 to use them.f Delivery of a sample has been sufficient to transfer the property, when the goods could not

* Pleasants v. Pendleton, G Randolph's Rep. 473.

» Lucas v. Dorrien, 7 Term Rep. 278. Searle v. Reeves, 1 Esp. Rep. 598. Bentall v. Barn, 3 Barn. $ Cress. 423.

« Lord Ellenborough, 14 East's Rep. 312. The selecting and marking of sheep, in the possession of B., who is desired to retain possession of them for the vendee, was held to be a sufficient delivery to complete the sale, and pass the property. Barney v. Brown, 2 Vermont Rep. 374. 1 Bell's Com. 176. Campbell v. Barry, Ibid. The Vermont and the Scotch decisions were founded on the same circumstances.

d Shirley v. Haywood, 2 H. Blacks. 509. Baldey v. Parker, 2 B. $ Cress. 37. Elliott v. Thomas, 3 Mees. <$. Wels. 110. Mills v. Hunt, 20 Wendell, 431. Delivery of part of goods sold for the whole, applies to all the goods embraced by the contract of sale, although they happen to be scattered in different and distant places. Shurtleff v. Willard, 18 Pick. Rep. 202. 210, 211.

• Walworth, Ch., in Mills v. Hunt, 20 Wendell, 434.

f Jewett v. Warren, 12 Mass. Rep. 300. S. P. Shindler v. Houston, 1 Denio, 49.

be actually delivered until the seller had paid the duties; that fact being known and understood at the time, and when the buyer accepted of the sample as part of the quantity purchased.* The delivery must always be according to the subject matter of the delivery, and the property must be placed under the control and power of the vendee.b

Cutting of the spills of wine casks, and marking the initials of the purchaser's name on them, has been held an incipient delivery, sufficient to take the case out of the statute.0 So, if the purchaser deal with the commodity as if it were in his actual possession, this had been held to supersede the necessity of proof of actual delivery."1 Where a purchaser at the merchant's shop, marked the goods which he approved of, and laid them aside on the counter, and went for a porter to remove them, without receiving a bill of parcels, or stipulating a time of payment, or tendering the merchant's note which he was to offer in payment, it has been held, that the property in the goods was not changed by that transaction.e Since that decision, a more relaxed rule has, at times, been adopted; and it has been held, that on the purchase •503 of a horse, without memorandum, payment, *or actual delivery, the verbal request of the buyer that the vendor keep the horse in his possession for a special purpose, and the consent on the part of the vendor,

• Hinde v. Whitehouse, 7 East's Rep. 558. But generally, as a substitute for actual or constructive delivery, the taking of samples has no effect. Hill v. Buchanan, cited in a note to 1 Bell's Com. 182.

s 2 N. if. Rep. 318. Incorporeal rights are not susceptible of actual delivery, and a quasi-possession is taken, when the use commences, as a right of way. So, the delivery of a debt, or chose in action, consists in the assignment of it with notice. Pothier, TraiU du Droit de Propriitc, No. 214, 215.

• Anderson v. Scott, 1 Camp. Rep. 235. n.

d Chaplin v. Rogers, 1 East's Rep. 192. Blenkinsop v. Clayton, 1 Moore's Rep. 328.

• Dutilk v. Ritchie, 1 Dall. Rep. 171. See, also, to the same point, Baldey v. Parker, 2 Barnw. Cress. 44.

amounted to a constructive delivery, sufficient to take the sale out of the statute.11 That case has since been questioned, as carrying the doctrine of constructive delivery to the utmost verge of safety; and the later cases seem to have resumed a stricter doctrine, and qualified the inference to be drawn from the acts of the buyer. The presumption of a delivery is not readily allowed, when there has been none in fact; for it goes to deprive the seller of the possession and of his lien, without payment.b The purchase of a part of a heap of grain, or of other goods in bulk, if the same be not measured off and separated at the time, is not valid, even though the seller afterwards measured it off and set it apart for the vendee.0 On the other hand, probity in dealing, the interests of commerce, and the variety, extent, and rapidity of circulation of property, which it has introduced, require that delivery should frequently be presumed from circumstances; and a destination of the goods by the vendor to the use of the vendee, the marking them, or making them up to be delivered, or the removing them for the purpose of being delivered, may all entitle the vendee to act as owner.d But the presumption fails when positive evidence contradicts it, as in the case of a refusal on the part of the vendor to part with the goods until payment ;e and on the part of the vendee to take the goods when inspected ;f *or the delivery be of a sam- *504

* Elmore v. Stone, 1 Taunt. Rep. 458.

b Tempest v. Fitzgerald, 3 Barn. $ Aid. 680. Carter v. Toussaint, 5 Ibid. 855. Dole v. Stimpson, 21 Pick. 384.

» Howe v. Palmer, 3 Barnw. $ Aid. 321. Salter v. Knox, 1 Bell's Com. 181. n. S. P. Eagle v. Eeichelberger, 6 Watts, 29. See supra, p 496, S. P.

e Lord Loughborough, 1 H. Blacks. Rep. 363. 1 Campb. N. P. Rep. 233. Parker v. Donaldson, 2 Watts $ Serg. 1.

• Goodall v. Skelton, 2 Blacks. Rep. 316.

r Kent v. Huskinson, 3 Bos. <J- Pull. 233. The delivery to the carrier will not conclude the vendee, and be construed into an actual acceptance of the goods, so long as the vendee retains the right of inspection upon the ultimate delivery, and to object to either the quantity or quality of pie, which is not part of the bulk of the commodity sold. The good sense of the doctrine on the subject. would seem to be, that in order to satisfy the statute, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and an actual acceptance by the vendee, with an intention of taking possession as owner.*

If the subject matter of the contract does not exist in rerum natura, at the time of the contract, but remained to be thereafter fabricated out of raw materials, or materials not put together, it is consequently incapable of delivery, and not within the statute of frauds; and the contract is valid without a compliance with its requisitions.1" The case rests entirely on contract, and no property passes, until the article is finished and delivered.6

the goods. Astley v. Emery, 4 Maule «J- Selw. 264. Hanson v. Armitage, 5 Burma. <J Aid. 559.

» Phillips v. Bistolli, 2 B. $ Cress. 511.

b Towers v. Osborne, Sir. 506. Groves v. Buck, 3 Maule <$- Selw. 178. Littledale, J., in Smith v. Surman, 9 B. $ Cress. 561. Mixer v. Howarth, 2l Pick. 205. See, also, infra, p. 511, n. e.

< Muclow v. Mangles, 1 Taunt. Rep. 318. Atkinson v. Bell, 8 B. $ Cress. 277. In the Scotch law, if goods be purchased from a manufacturer, before some necessary operation of his art be completed, as if one buys a ship on the stocks, or a vase in the hands of a goldsmith, unfinished or cotton goods, upon the loom, in a state of preparation, and the price be paid, there is held, in these cases, to be a constructive delivery sufficient to pass the property; and this was the doctrine of the civil law. 1 Bsll's Com. 176. 178. This may bo very reasonable doctrine; but the English rule, according to the case in Taunton, is more strict, and it requires the chattel to be finished, and in a state for delivery, and to be delivered, according to the nature of the case, to change the property. In Wood v. Russell, 5 Barnw. <J- Aid. 942, Ch. J. Abbott laid down the principle, that where a ship is built upon special contract, and portions of the price were to be paid according to the progress of the work, those payments appropriate specifically to the purchaser the vessel so in progress, and vest the property as between him and the builder, so as to entitle him to insist on the completion of that very vessel. The same principle is declared in the Scots law. Simpson v. Duncanson, cited in Bell on the Contract of Sale, Edin. 1844, p. 17. But the court of K. B., in Clark v. Spencc, 4 Adelph. <f Ellis, 448, admitted with reluctance, the authority for this new princi

If the buyer unreasonably refuses to accept of the article sold, the seller is not obliged to let it perish on his hands, and run the risk of the solvency of the buyer. The usage, on the neglect or refusal of the buyer to come in a reasonable time, after notice, and pay for and take the goods, is for the vendor to sell the same at auction, and to hold the buyer responsible for the deficiency in the amount of sales.*

*(7.) The place of delivery is frequently a point *505 of consequence in the construction of the contract of sale.

If no place be designated by the contract, the general rule is, that the articles sold are to be delivered at the place where they are at the time of the sale. The store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer, at which the commodities sold are deposited or kept, must be the place where the demand and delivery are to be made,

pie, and said that the general and prior rule of law was, that under a contract for building a vessel, or any thing not existing in specie at the time of the contract, no property vested in the purchaser during the progress of the work, even though the precise mode and time of payment were fixed, nor until the thing was delivered, or ready for delivery, and approved of by the purchaser, and that the purchaser was not bound to deliver the identical article, if another answered the specification in the contract The court nevertheless followed the authority of Wood v. Russell. In Lunn v. Thornton, 1 Man. Go. j- Sc. 379, it was adjudged that personal property not belonging to the grantor or vendor at the time of the grant or bill of sale, would not pass by it, as if a bill of sale be executed of goods in a shop, and other goods be afterwards added to them by the vendor to give effect to the grant, the grantor must ratify it by some act done by him after he has acquired the property. The 14th rule in Lord Bacon's maxims is to the same effect.

• Sands &. Crump v. Taylor & Lovett, 5 Johns. Rep. 395. Adams v. Minick, cited in 5 Serg. $ Ratale, 32. Girard v. Taggard, 5 Ibid. 19. M'Combs v. M'Kennan, 2 Watts $ Serg. 21G. Where the purchaser refused to pay for a thing sold by the sheriff at his public sale, and the sheriff re-sells the article at a lower price, the rule of damages against the purchaser is the difference between the first bid and the second sale, for that is the loss actually s.istained. Lamkin v. Crawford, Alabama Rep. N. S. vol. 8, 153.

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