Benjamin gives the following example: he sup poses that A sells out of his brick yard one thousand bricks to B, who is to send his cart and take them away. Here B, says Benjamin, is to do the first act, and cannot do it until the selection is determined. He may go about the yard from stack to stack and select the bricks, and he may change his mind from time to time, up to the point where finally he de termines the selection by putting the bricks into his cart to be taken away. Once that is done, his selec tion is determined, and he cannot change his mind and replace the bricks he has taken by others. If on the other hand it had been agreed that A was to load the bricks into B's cart, A would be free to select the bricks, and to change his mind as to his selection until lie had finally loaded the bricks into B's cart. Lord Blackburn has laid it down that: It follows from this that where from the terms of an exec utory agreement to sell unspecified goods, the vendor is to dispatch the goods, or to do anything to them that cannot be done till the goods are appropriated, he has the right to choose what the goods shall be; and the property is trans ferred the moment the dispatch or other act is commenced, for then the appropriation is made finally and conclusively by the authority conferred in the agreement.
And in Lord Coke's language: The certainty and thereby the property begins by selec tion. But however clearly the vendor may have expressed an intention to choose particular goods, yet until the act has actually commenced, the appropriation is not final, for it is not made by the authority of the other party, nor bind ing upon him.' In an interesting English case 2 there was an ap propriation by the seller to which the buyer later as sented. The seller had a lot of sugar in bulk. The buyer bought twenty hogsheads of it. The seller filled and delivered four hogsheads, and later filled the sixteen remaining hogsheads, set them aside and then gave notice to the buyer to take them away. This the buyer promised to do. It was held that there was an assent to the appropriation of the sixteen hogsheads, and that the property therein passed to the buyer. This decision will be better understood when we say, that when a person buys an unascertained portion of a larger bulk, he acquires no property in any part until there has been a separation of the portion, and until it has been appropriated to the contract by the consent of both parties, tho this consent may be ex press or implied.
Where the goods sold are delivered to the carrier, the presumption is that they are appropriated to the contract, because it is assumed that the parties so in tended. It may have been intended, however, and if so it may be shown that the title should not pass until the buyer actually got delivery. For supposing that the seller, while he appropriates the goods to the con tract and actually dispatches them, keeps control of them by taking the bill of lading in his own name, it is clear that, under these circumstances, the seller has no intention of parting with the title to the goods until he is sure that the buyer is solvent, and can and will pay for them.
Frequently goods are sold and shipped C.O.D. The courts are by no means unanimous in their hold ings as to when the title passes to the buyer. It has been held in some cases that title passes to the buyer when the goods are received by the carrier; in other cases that they do not pass until the buyer pays for them. Certainly, however, if the buyer does not pay for them he is not entitled to the possession of the goods.
The general rule is that where things movable are sold by weight, number or measure, as part only of a mass, and not in the lump, the sale is not perfect until they have been weighed, counted or measured. In other words, the part that is sold must be separated from the mass, and the weight, and number of meas ure ascertained before the sale is complete. Ordi narily the buyer should have notice or knowledge that the weighing, measuring or counting has been per formed, or lie should be present thereat. This case is distinguishable from the case where several persons are owners or tenants, in common, of a mass of goods. Thus A, B and C may own in common, in equal or in unequal proportions, all the wheat in a certain ele vator. Any of them may sell and give a good title to his portion of the wheat, altho it is mixed with that of the others. Delivery could be made by merely band ing a delivery order to the purchaser, who would be en titled to deal with the portion of the wheat which he had bought. Such a sale is perfect without the por tion which is sold being separated from the mass. But if A were to sell one thousand bushels of his por tion, the sale would not be complete until the thousand bushels were measured out, and the measure checked or accepted by the purchaser.
10. When the seller retains possession.—As we have seen, a sale of an article may be made, upon which the title to the article passes immediately to the purchaser. The seller may, however, retain posses sion. Such a transaction must be in absolute good faith, and must not be made simply to enable the sel ler to say to his creditors that the article in question had been sold to B. If in reality there was no sale, and B did not intend to take delivery, this sale would probably be held to be void, in so far as it would ap pear to have been made solely to benefit the seller. The purchaser would have to come forward and prove his honesty of performance, that the title actually passed to him but that, as a matter of convenience, the seller retained possession.