Formerly if something remained to be done in the way of weighing or measuring in order to determine the price, the property would not pass even though the goods were speci fied; 6 East 614. This rule has been gener ally adopted; Jones v. Pearce, 25 Ark. 545; Wesoloski v. Wysoski, 186 Mass. 495, 71 N. E. 982 ; Gilman & Sanborn v. Hill, 36 N. H. 311; Miller v. Seaman, 176 Pa. 291, 35 Atl. 134; Pike v. Vaughn, 39 Wis. 499; and this pre sumption has been applied although the weighing or measuring was to be done by the buyer ; Pinkham v. Appleton, 82 Me. 574, 20 Atl. 237 ; Pittsburgh, C. & St. L. R. Co. v. Noel, 77 Ind. 110. In other states, however, there is a general presumption that the prop erty passes when all the terms of the bargain are fixed, although the buyer is subsequently to weigh or measure the goods in order to complete the calculation of the price ; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Hagins v. Combs, 102 Ky. 165, 43 S. W. 222 ; Day v. Gravel, 72 Minn. 159, 75 N. W. 1. Where the rule exists that the property presumably does not pass if something remains to be done to ascertain the price, the rule is everywhere merely one of presumption, which will yield to evidence showing an intent to transfer the property immediately ; Wheelock v. Stark weather, 146 Mich. 53, 108 N. W. 1085; Wad hams v. Balfour, 32 Or. 313, 51 Pac. 642.
Non-payment of the price is little or no evidence of an intention to retain the owner ship. This is because cases where the buyer pays in advance and trusts the seller to per form his contract later are unusual, but cas es where the seller transfers the property and gives the buyer credit for the price are so common that it is not a safe assumption that such a transaction was not intended.' Where there is a "sale or return," or "sale on ap proval," it is a question of fact in every case whether the parties intended to make ap proval a conditiori, without which the proper ty should not pass, or whether their intent was that the property should pass at once with the right to return the goods. Some times it is expressly provided that the seller shall retain title; Crocker v. Gullifer, 44 Me. 491, 69 Am, Dec. 118. Sometimes the con tract may be put in the form of a bailment or lease, thus cleayly indicating that the seller is to retain title until the buyer's option is exercised; Stiles v. Seaton, 200 Pa. 114, 49 Atl. 774. The use of the word "return" itself ordinarily implies a previous transfer of the property ; Frye v. Burdick, 67 Me. 408. Whereas 'if it is agreed that goods shall be delivered on trial, or on approval, the lan guage indicates that the buyer's approval is a condition precedent to the transfer of the property. Frequently the bargain of the par ties will fix the time within which the buyer must return the goods ; Butler v. School fails to exercise the right thus given him, his title cannot thereafter be avoided ; Stevens v. Hertzler, 109 Ala. 423, 19 South. 838. If the contract does not fix a time, the law adopts the rule of the time that is reasonable under the circumstances.
Rules for Ascertaining Intention. By the Sales Act: Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. For the purpose of as
certaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case. Unless a dif ferent intention appears, the following are the rules for ascertaining the intention of the parties: 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed. 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done. 3. (a) When goods are delivered to the buyer "on sale or return" or on other terms indicating an intention to make a present sale, but to give to buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller,by returning or tendering the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time. (b) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buy er—(a) when he signifies his approval or ac ceptance to the seller or does any other act adopting the transaction; (b) if he does not do so but retains the goods without giving no tice of rejection, then, if a time has been fixed for the return of the goods, on the ex piration of such time, and if no time has been fixed, on the expiration of a reasonable time.. 4. (1) Where there is a contract to sell unas certained or future goods by description, and goods of that description and in a deliv erable state are unconditionally appropriated to the contract, the property, thereupon, pass es to the buyer. (2) Where, in pursuance of a contract to sell, the seller deliVers the goods to the buyer, or to a carrier, or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have uncondi tionally appropriated the goods to the con tract, with the exception provided for rule 5, and where seller has reserved the right of. possession or property. This pre sumption is applicable, although by the terms of the contract, the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words "collect on delivery" or their equivalents. 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of trans portation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.