Sale

seller, buyer, co, property, delivery, appropriation, auction, risk, bid and contract

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Subsequent Appropriation. In the cases of unascertained or future goods there must be some act of appropriation of the goods to the buyer, other than mere completion or preparation, and the act of appropriation should be assented to by both parties. The buyer may make the proposition by request ing the seller subsequently to appropriate goods to him, or the seller may make it by appropriating goods to the buyer and sub sequently securing the latter's assent. It is immaterial which party by the terms of the contract is to make the appropriation; 1 Taunton 318; 5 B. & A. 942; 6 B. & C. 388; 10 Bing. 512; Mitchell v. Le Clair, 165 Mass. 308, 43 N. E. 117. To be distinguished' from cases where the seller is subsequently to appropriate goods to the buyer are cases where the buyer furnishes the materials upon which the seller is to do the work. Where both furnish goods, then the proportion of goods furnished by one party or the other furnishes the best evidence of their intention as to subsequent appropriation in the ab sence of a direct expression of it; West Jer sey R. R. Co. v. Trenton Car Works, 32 N. J. L. 517. Appropriation of the goods to the buyer can only be binding if made in accord ance with authority previously given or if subsequently assented to by him. If, there fore, goods are appropriated by the seller which are not in conformity with the au thority given, the property will not, pass. The lack of conformity may be in kind or quantity. Where goods are necessarily appro priated in parts or instalments, the law takes the view, that presumptively the buyer does not intend to become owner of anything un til there can be final appropriation of the whole; 4 M. & W. 775. The commonest and most important illustration of the transfer of the property in goods by subsequent appro priations by the seller, arises where the sell er in fulfillment of a contract with, or an offer from, the buyer, delivers goods to a car rier for shipment to the buyer. That the property passes on delivery to the carrier, under these circumstances, was settled in deed before the general rules of the appro priation by the seller had been completely formulated; 1 Atk. 245, 248; 3 B. & P. 582. It is a common practice to send goods to the buyer marked "C. 0. D." See C. 0. D. It has been held by some authorities that the effect of this is to retain title in the seller until the price is paid; U. S. v. Cline, 26 Fed. 515; State v. U. S. Express Co., 70 Ia. 271, 30 N. W. 568; Hardy v. Am. Express Co., 182 Mass. 328, 65 N. E. 375, 59 L. R. A. 731. The weight of authority, however, sup ports the view that possession only is to be retained by the seller until the price is paid and that the property passes immediately on delivery to the carrier, assuming that the cir cumstances are such that the property would pass were it not for the requirement of payment of the price before delivery; U. S. v. Adams Ex. Co., 119 Fed. 240; Carthage v. Duvall, 202 Ill. 234, 66 N. E. 1099; State v. Intoxicating Liquors, 98 Me. 464, 57 Atl. 798; Higgins v. Murray, 73 N. Y. 252; Nor folk, etc., R. Co. v. Barnes, 104 N. C. 25, 10 S. E. 83, 5 L. R. A. 611; Com. v. Fleming, 130 Pa. 138, 18 Atl. 622, 5 L. R. A. 470, 17 Am. St. Rep. 763. Where goods are shipped "f. o. b." this means that the seller shall bear all expenses until the goods are delivered at the place where they are to be "f. o. b." and the

presumption that the property is to pass then is applicable; Fruit Dispatch Co. v. Sturges, 73 Ohio St. 351, 78 N. E. 1125; a distinction is taken between "deliver f. o. b." and "bill f. o. b.," the latter not necessarily imposing on the seller the duty to deliver; Dannemil ler v. Kirkpatrick, 201 Pa. 218, 50 Atl. 928. As to reservation of right of possession or property when goods are shipped, see BILLS OF LADING; STOPPAGE IN TRANSITII Sale by Auction. By Sales Act: (1) Where goods are put up for sale by auction in lots, each lot is the subject of a separate contract of sale. (2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other custom ary manner. Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve. (3) A right to bid may be reserved expressly by or on behalf of the seller. (4) Where notice has not been given that a sale by auction is subject to a right to bid on behalf of the seller, it shall not be law ful for the seller to bid himself or to employ or to induce any person to bid at such sale on behalf of the seller or knowingly to take any bid from the seller or any person employ ed by him. Any sale contravening this rule may be treated as fraudulent by the buyer. See AUCTION.

Risk of Loss. By Sales Act. Unless other wise agreed the goods remain at the seller's risk until the property therein is transferred to the buyer, the goods are at the buyer's risk whether delivery has been made or not, ex cept that—(a) Where delivery of the goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and the property in the goods has been re tained by the seller merely to secure perform ance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery. (b) Where the delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.

Where goods are delivered to the buyer but title is retained by the seller until the price is paid, the buyer immediately acquires the right to use the goods as his own and it would seem to follow that if the goods are accidentally destroyed or injured, the buyer must stand the loss. The decisions are, how ever, lu conflict, but the weight of authority sustains the view here expressed ; Chicago Ry. Equipment Co. v. Bank, 136 U. S. 268, 283, 10 Sup. Ct. 999, 34 L. Ed. 349; Burnley v. Tufts, 66 Miss. 48, 5 South. 627, 14 Am. St. Rep. 540 ; American Soda Fountain Co. v. Vaughn, 69 N. J. L 582, 55 Atl. 54; Whit lock v. Lumber Co., 145 N. C. 120, 58 S. E. 909, 12 L. R. A. (N. S.) 1214; La Valley v. Ravenna, 78 Vt. 152, 62 Atl. 47, 2 L. R. A. (N. S.) 97, 112 Am. St. Rep. 898, 6 Ann. Cas. 684; Osborn v. Lumber Co., 91 Wis. 526, 65 N. W. 184 ; contra, Arthur & Co. v. Black man, 63 Fed. 536; American Soda Fountain Co. v. Blue, 146 Ala. 682, 40 South. 218 ; Mountain City Mill Co. v. Butler, 109 Ga. 469, 34 S. E. 565 ; Sloan v. McCarty, 134 Mass. 245. Doubtless the question of risk may be settled by the parties in any way they please, and some of the apparently conflicting de cisions may be reconciled on this basis. See

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