brought into the concern by individual members as a portion of the capital stock is, in equity, for the purpose of a settlement of the partnership affairs, to be treated as partnership property. Duryea vs. Burt, 28 Cal. 569.

SEC. 42. Dissolution of Mining Partnership.-One of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership. Duryea vs. Burt, 28 Cal. 569; Skillman vs. Lachman, 28 Cal. 198.

CHAPTER XVI.

CONTRACTS OF SALE.

[See Sec. 28, page 44.]

SECTION 1. In order to constitute a valid sale of personal property against creditors, there must be, according to the statute of this state, an immediate delivery thereof, accompanied by an actual and continued change of possession. Samuels vs. Gorham, 5 Cal. 226; Whitney vs. Stark, 8 Cal. 514.

SEC. 2. The change of possession is required as a protection against creditors and subsequent purchasers. Page vs. O'Neal, 12 Cal. 433; Stewart vs. Scannell, 8 Cal. 80; Malone vs. Plato, 22 Cal. 103.

SEC. 3. The change of possession, or the delivery of the property sold to the purchaser, is not necessary to the validity of the contract between the vendor and vendee, but is only so as to creditors and subsequent purchasers. Vishnor vs. Webster, 13 Cal. 58; Montgomery vs. Flint, 5 Cal. 366; Thornburg vs. Hand, 7 Cal. 554; Bickerstaff vs. Doub, 19 Cal. 109.

SEC. 4. In reference to the sale of personal property, the contract is valid as between the parties, without a change of possession. But in regard to third parties, to make the contract good as against them, the possession must be changed. The object contemplated by the law is the protection of others against fraud. This is accomplished by giving notice of the sale; and this notice is given

by a change of possession. Mitchell vs. Steelman, 8 Cal. 375.

As the object of changing the possession is to give notice to subsequent purchasers, it would seem that although the possession was not in fact changed, yet if the subsequent purchaser takes with actual notice, he is not injured, and the first sale must stand. As the end contemplated by the law has been attained, the intent of the law has been fulfilled, and the protection designed by it accomplished. The fifteenth section of our statute of frauds only makes the sale of personal property without a change of possession "conclusive evidence of fraud as against subsequent purchasers in good faith." If he has actual notice, he cannot be a purchaser in good faith. 8 Cal. 375.

SEC. 5. That a sale of personal property may be good as against creditors and subsequent purchasers, the statute requires that the vendee must take actual possession, open and unequivocal, such as will carry with it unmistakable marks of ownership. The possession must be continuous, not taken to be returned again—not formal, but substantial. It need not continue undefinitely, but it must continue long enough to give character to the claim of it by the vendee. Stephens vs. Irwin, 15 Cal. 503; Engles vs. Marshall, 19 Cal. 320.

may

SEC. 6. In order that a verbal contract for the purchase of goods or chattels at a price exceeding two hundred dollars be saved from the operation of the statute of frauds by a delivery, there must be a transfer of possession evidenced by acts, and not by words merely. Malone vs. Plato, 22 Cal. 103.

SEC. 7. Delivery of Possession.-What constitutes a delivery depends on the character of the article and the circumstances of the case. Chaffin vs. Doud, 14 Cal. 384. Where the thing purchased is susceptible of actual and immediate delivery, such actual and immediate delivery must be had. Stevens vs. Stewart, 3 Cal. 140. By an immediate change of possession, is not meant (in all cases) a delivery instanter, but the character of the property sold, its situation and all the circumstances, must be taken into consideration in determining whether there was a delivery within a reasonable

time, so as to meet the requirements of the statute, and this will be often a question of fact for a jury. Samuels vs. Gorham, 5 Cal. 226; Lay vs. Neville, 25 Cal. 545. As, where plaintiffs purchased of B, a certain number of cattle, and presented to C, the agent of B, an order for their delivery. C pointed out to plaintiffs, the cattle as they were grazing in view, and said to them: "I deliver you the possession." The plaintiffs then employed C to continue in charge of the cattle, who remained in charge until they were seized by the defendants: Held, that this was a delivery as immediate and complete as the nature of the case would admit, and was followed by an actual and continued change of possession. Montgomery vs. Hunt, 5 Cal. 366; Hodgkins vs. Hook, 23 Cal. 584.

Where cattle are running at large, and after being purchased they are gathered together, and marked with the brand of the purchaser, constitutes a good delivery and continued change of possession, although they be allowed to roam on their accustomed pasture afterward. But the mere execution of a bill of sale, and the delivery to the purchaser of the branding iron, unaccompanied by any other acts, does not constitute a delivery of possession. Walden vs. Murdock, 23 Cal. 540.

SEC. 8. Words alone, unaccompanied by some act, which is calculated to give some notoriety to the change or afford some notice to the public that a change of ownership has been effected, will not constitute a delivery. Gardet vs. Belknap, 1 Cal. 399.

SEC. 9. Segregation of Property.—If goods are sold, while mingled with others, by number, weight or measure, the sale is incomplete, and the title remains in the seller, until the bargained property is separated and identified. A sale of a chattel cannot apply to any article, until it is clearly designated and its identity ascertained, as where there is a sale of a given number of cattle then running in a herd of a larger number, is an executory contract, and does not apply to any particular cattle, until the number sold have been separated from the herd. McLaughlin vs. Piatti, 27 Cal. 451.

SEC. 10. The owner of a quantity of flour on storage in

a warehouse, may sell all to different persons, in quantities less than the whole, by giving to each person an order on the warehouseman, which order, when delivered to him, he may accept, and by charging the owner with the amount of each order so accepted, and by giving a receipt to each of the purchasers for so much flour as is indicated by each order, and crediting each purchaser with the amount of his purchase on his books, is a sufficient delivery of possession without a separation of the various lots. But where he sells only a part of the goods on storage, those sold, if all together and of the same mark, must be separated from the larger mass in order to change the possession. It would be a sufficient delivery, if all the goods of the vendor in the hands of a third party were sold, if the purchaser should present the vendor's order for the goods, take a receipt for them, and have the vendor charged, and himself credited with them on the books of the warehouseman. Horr vs. Barker, 8 Cal. 603.

SEC. 11. Warehouse Receipt.-The delivery of a warehouse receipt, which was given to A, stating that the goods named and described therein are deliverable on the return of the receipt, is sufficient, prima facie, to pass the title to B, who, being in possession of the receipt, presents the same. There is no substantial difference in this respect between a warehouse receipt and a bill of lading. Horr vs. Barker, 8 Cal. 609.

SEC. 12. Time.-Delivery, as to the time when it should be perfected, depends on the nature of the thing. Hay cannot be delivered until it is in a condition to be taken into possession. Growing crops are not goods and chattels, within the meaning of the statute of frauds, and will pass by deed of conveyance from the very necessity of the case, as they are not susceptible of manual delivery until harvested and reduced to actual possession. Bours vs. Webster, 6 Cal. 661; affirmed in Bernal vs. Hovious, 17 Cal. 541. SEC. 13. The memorandum required by the statute of frauds to be entered by an auctioneer in his sale-book must be made at the very time of the sale, or the vendee will not be bound by the contract. So held in a case where the sale at auction took place in the forenoon, and the memorandum

was not made by the auctioneer before the evening of the same day. Craig vs. Godfrey, 1 Cal. 415.

SEC. 14. Where an auctioneer sells a balance of goods, without specifying their quantity, he has a reasonable time to ascertain it; when this is done, and a bill of particulars is made out and delivered to the purchaser, who pays the purchase money or a portion of it, the contract becomes executed, and the auctioneer will not afterwards be permitted to allege a mistake as to the quantity sold. Until an account is rendered of the quantity the purchaser is completely within the auctioneer's power; and this power would be continued, if afterwards he were allowed to allege a mistake. If he chose to act in bad faith, he might take advantage of a rising or falling market, and increase or diminish the quantity accordingly. Besides, the purchaser, after receiving the bill which is rendered, is presumed to act with reference to it, and to enter into other contracts, relying upon the faith of it. Where a mistake occasions loss, it must be suffered by him who makes it. Burgoyne et al. vs. Middleton, 4 Cal. 66, 67.

SEC. 15. Fraud.-The rule is the most just and reasonable, that where a person, clearly insolvent, purchases goods from another, on credit, and conceals the fact of insolvency from the vendor, he is guilty of such fraud as vitiates the sale. The insolvency ought to be clear, and not subject to any reasonable doubt. And the purchaser must be held to know the true state of his own business; and, if he does not, the consequences should not be visited upon the party who had not the means of knowing. Seligman vs. Kalkman, 8 Cal. 215.

SEC. 16. A sale of personal property, with intent to benefit the seller and injure creditors, is fraudulent and void. Riddell vs. Shirley, 5 Cal. 488.

SEC. 17. When not Void.-A bona fide purchase made by a creditor, of the goods of his debtor, who is in insolvent circumstances, is not fraudulent, merely because such creditor thereby obtains a preference over other creditors, and may be aware at the time that his purchase will have the effect of delaying or defeating the other creditors in the collection of their debts. Walden vs. Murdock, 23 Cal. 540.