or not it is intended in a particular case that the property in the thing sold should pass to the purchaser will be a question of fact, and will be de cided by what appeared to be the intention of the parties at the time. The risk attaches to the owner ship of the goods. The parties may, however, by agreement arrange that one or the other shall bear the risk. An agreement to this effect may be inferred from a course of dealing, or from usage, binding on both. The courts will not find that the buyer has assumed the risk before the property has vested in him, unless his intention to do so is expressed, or is clearly to be inferred from the Thus in an English case a contract for the sale of a cargo of ice was under consideration. The contract read in part as follows : The vendors forward bills of lading to the purchaser, and upon receipt theieof the said purchaser takes upon him self all risks and dangers of the seas, rivers and navigation, of whatever nature or kind soever, and the said Playford agrees to buy and receive the said ice on its arrival at or dered port . . . and to pay for the same in cash on delivery at 20s. per ton, weighed on board during delivery.
The ship was lost at sea. The sellers brought ac tion for the price of the ice, and the purchaser pleaded that the cargo did not arrive at the ordered port. It was held that as the ice did not arrive, the property did not pass by the terms of the contract, and would not pass until the ice was weighed on board; that con sequently the time for payment had not arrived, and that the defendant was not liable; that the provision with regard to risk was to protect the seller from lia bility for non-delivery caused by dangers of the sea.' This judgment was reversed in the' Exchequer Chamber, on the ground that the property passed on shipment and delivery of the bills of lading, and that the purchaser had stipulated that upon receipt of the bills of lading the purchaser "takes upon himself all risks and dangers of the seas, etc." Having under taken all the risks and dangers of the seas, and agree ing to buy and receive the said ice, the defendant was bound to his contract to pay if delivery was prevented by dangers of the sea, and it was immaterial whether the property passed or not.
In another case 1,090 sugar loaves, comprised in four batdles, marked and lying apart in a warehouse, were sold by the manufacturer to a broker. Each loaf weighed from thirty-eight to forty-two pounds and was, according to usage, weighed on being taken away by the buyer. The terms were: "Prompt at one month; goods at seller's risk for two months." The goods had been paid for in advance of being weighed, at an approximate sum, which was to be afterward definitely adjusted and settled when the goods came to be weighed and delivered; and part of them had been taken away by the purchaser. The residue was destroyed by fire after the lapse of the two months and before being weighed. It was held
that the property had passed to the purchaser, the parties having, by fixing upon a provisional estimate of the price, shown an intention that the property should not depend upon the weighing to fix the exact amount, and the goods being specific. The fact that the contract provided that the goods should be at the seller's risk for two months, showed that it was in tended that the property should be in the buyer, as otherwise such a provision would not be The general rule is that when things which are movable are sold by weight, number or measure and not in the lump, the sale is not perfect until they have been weighed, counted or measured; but the contract may stipulate the contrary. If, however, the subject matter of the sale is complete and in a deliverable con dition, then, as we have seen, the title or property in the thing sold passes at once, altho delivery may be delayed.
9. Conditional sale.—Goods may be sold subject to some condition: for example, if a thing is sold upon trial, the presumption is that the sale is made upon a suspensive condition, unless there is apparent a con trary intention. The title would not pass in this case until the buyer had indicated his approval and his in tention to buy. If he retains the thing sold to him on approval for an unreasonable time, or for a period longer than that agreed upon, his approval will be implied. If he in turn sells the goods to another, his approval will naturally be implied.
It has been laid down in one or more English cases, that where the contract is to the effect that the buyer may at his option rescind the sale by the return of the goods, and the goods are destroyed or injured while in his possession, but without his fault, he is not liable to pay the price because of his inability to re turn the goods. It is said that the risk attaches to the person "who is eventually entitled to the property in the chattel." Of course the buyer who has such a right of option should exercise it within a reasonable time.
When goods are ordered from a distance, at what time does the title to them pass to the buyer? A merchant in Toronto writes to a merchant in Mon treal giving him an order to forward one thousand bars of pig iron of a certain kind. The merchant in 1VIontrealmust proceed to select the bars, and to ap propriate them to the contract. The mere fact that he selects them cannot be said to transfer the owner ship of them; supposing even that he lays them aside in his warehouse, undoubtedly he may change his mind and select another lot. It is probable that the bars are not appropriated to the contract until they are dispatched by being placed in a car, or until some other act is done from which it may be inferred that the seller has divested himself of the possession and ownership of them.