ment was specified at the end of both notes on one sheet and at the end of the bought note only on the other. (a)

of broker's

§ 305. The authority of the broker may, of course, like that of Revocation any other agent, be revoked by either party before he authority. has signed in behalf of the party so revoking, (b) but after the signature of the duly authorized broker is once affixed to the bargain, the only case in which the party can be allowed to recede appears to be that mentioned supra, § 302, where a credit sale has been made to an unnamed purchaser, in which event custom allows the vendor to retract if on inquiry within reasonable time after being informed of the name he disapproves the sufficiency of the purchaser.

§ 306. And where a broker had, reluctantly and after urgent Subsequent persuasion by the vendor, made an addition to the sold

alteration

of sold note.

note after both the bought and sold notes had been delivered to the parties and taken away, the vendor's contention that this addition was simply inoperative was overruled, and the court held that the fraudulent alteration of the note destroyed its effect, so that the vendor could not recover on it. (c) And the effect would be the same in the case of a material alteration even not fraudulent. (d)

Broker's

clerk.

§ 307. In Henderson v. Barnewall, (e) where the parties contracted in person in presence of the broker's clerk, who had brought them together on the Exchange, and one, in the hearing of the other, dictated to him the terms of the agreement, it was held by all the barons of the exchequer that the agency of the clerk was personal, and that neither an entry of the bargain in the broker's books nor a sale note signed by him would satisfy the statute, because the clerk could not delegate the agency to his employer.

(a) Maclean v. Dunn, 4 Bing. 722-724. (b) Farmer v. Robinson, 2 Camp. 339, note; Warwick v. Slade, 3 Camp. 127. (c) Powell v. Divett, 15 East, 29.

(d) Mollett v. Wackerbarth, 5 C. B. 181; 17 L. J. C. P. 47.

(e) 1 Y. & J. 387.

nary re

§ 308. AFTER a contract of sale has been formed, the first question which suggests itself is naturally, What is its effect? When does the bargain amount to an actual sale, and when is it a mere executory agreement? We have already seen (a) that Prelimithe distinction between the two contracts consists in this: marks. that in a bargain and sale the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded, and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the vendor; (b) whereas in the executory agreement the goods remain the property of the vendor till the contract is executed. (b1) In the one case A. sells to B.: in the other, he only promises to sell. In the one case, as B. becomes the owner of the goods themselves

(a) Ante, §§ 3, 78.

(b) [In Meyerstein v. Barber, L. R. 2 C. P. 38, 51, Willes J. said: Since the judgment of Lord Wensleydale (then Justice Parke) in Dixon v. Yates, 5 B. & Ad. 313, it has never been doubted that by the law of England the sale of a specific chattel passes the property to the vendee, without delivery." See S. C. L. R. 4 H. L. 317, 326; Webber v. Davis, 44 Maine,

147; Bailey v. Smith, 43 N. H. 143; Tome v. Dubois, 6 Wallace, 548; Dexter v. Norton, 55 Barb. 272; Crill v. Doyle, 53 Cal. 713.]

(61) [Lester v. East, 49 Ind. 588, 592; Straus v. Ross, 25 Ib. 300; The Elgee Cotton Cases, 22 Wallace, 180; Leigh v. Mobile & Ohio R. R. Co. 58 Ala. 165; Cardinell v. Bennett, 52 Cal. 476; Olney v. Howe, 89 Ill. 556.]

as soon as the contract is completed by mutual assent, if they are lost or destroyed he is the sufferer. In the other case, as he does not become the owner of the goods, he cannot claim them specifically; he is not the sufferer if they are lost, cannot maintain trover for them, and has at common law no other remedy for breach of the contract than an action for damages.

§ 309. Both these contracts being equally legal and valid, it is obvious that whenever a dispute arises as to the true character of an agreement, the question is one rather of fact than of law. The agreement is just what the parties intended to make it. If that intention is clearly and unequivocally manifested, cadit quæstio. But parties very frequently fail to express their intentions, or they manifest them so imperfectly as to leave it doubtful what they really mean, and when this is the case, the courts have applied certain rules of construction, which in most instances furnish conclusive tests for determining the controversy.

§ 310. When the specific goods to which the bargain is to attach are not agreed on, it is clear that the parties can only contemplate an executory agreement. If A. buys from B. ten sheep, to be delivered hereafter, or ten sheep out of a flock of fifty, whether A. is to select them, or B. is to choose which he will deliver, or any other mode of separating the ten sheep from the remainder be agreed on, it is plain that no ten sheep in the flock can have changed owners by the mere contract: that something more must be done before it can be true that any particular sheep can be said to have ceased to belong to B. and to have become the property of A.

§ 311. But, on the other hand, the goods sold may be specific, as if there be in the case supposed only ten sheep in a flock, and A. agrees to buy them all. In such case there may remain nothing to be done to the sheep, and the bargain may be for immediate delivery, or it may be that the vendor is to have the right to shear them before delivery, or may be bound to fatten them, or furnish pasture for a certain time before the buyer takes them, or they may be sold at a certain price by weight, or various other circumstances may occur which leave it doubtful whether the real intention of the parties is that the sale is to take effect after the sheep have been sheared, or fattened, or weighed, as the case may be, or whether the sheep are to become at once the property of the buyer, subject to the vendor's right to take the wool, or to his

obligation to furnish pasturage, or to his duty to weigh them. And difficulties arise in determining such questions, not only because parties fail to manifest their intentions, but because not uncommonly they have no definite intentions, because they have not thought of the subject. When there has been no manifestation of intention, the presumption of law is that the contract is an actual sale, if the specific thing is agreed on, and it is ready for immediate delivery; but that the contract is only executory when the goods have not been specified, or if, when specified, something remains to be done to them by the vendor, either to put them into a deliverable shape, or to ascertain the price. In the former case there is no reason for imputing to the parties any intention to suspend the transfer of the property, inasmuch as the thing and the price have been mutually assented to, and nothing remains to be done. In the latter case, where something is to be done to the goods, it is presumed that they intended to make the transfer of the property dependent upon the performance of the things yet to be done as a condition precedent. Of course, these presumptions yield to proof of a contrary intent; and it must be repeated that nothing prevents the parties from agreeing that the property is a specific thing sold and ready for delivery, is not to pass till certain conditions are accomplished, or that the property shall pass in a thing which remains in the vendor's possession, and is not ready for delivery, as an unfinished ship, or which has not yet been weighed or measured, as a cargo of corn in bulk, sold at a certain price per pound or per bushel. (c)

(c) [In Riddle v. Varnum, 20 Pick. 283, 284, Dewey J. said: "In the case of sales where the property to be sold is in a state ready for delivery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties, that the sale is perfected and the interest passes immediately to the vendee, although the weight or measure of the article sold remains yet to be ascertained. Such a case presents a question of the intention of the parties to the contract. The party affirming the sale must satisfy the jury that it was intended to be an absolute transfer, and all that remained

Whether title passes is always question of intention.

to be done was merely for the purpose of ascertaining the price of the articles sold at the rate agreed upon." Barrows J. in Bethel Steam Mill Co. v. Brown, 57 Maine, 18, says: "The question of transfer to, and vesting of title in, the purchaser, always involves an inquiry into the intention of the contracting parties; and it is to be ascertained whether their negotiations and acts are evincive of an intention on the part of the seller to relinquish all further claim or control as owner, and on the part of the buyer to assume such control with its consequent liabilities." Chapman J. in Denny v. Williams, 5 Allen, 3, 4; Story J. in Barrett v. Goddard, 3 Mason, 113. Whether the title to

§ 311 a. [The general principles governing this branch of the subject cannot be better stated than in the clear and concise language of Chief Justice Bovill in the case of Heilbutt v. Hickson, L. R. 7 C. P. 449. "Where specific and ascertained existing goods or chattels are the subject of a contract of immediate and present sale, and whether there be a warranty of quality or not, the property generally passes to the purchaser upon the completion of the bargain, and the vendor thereupon has a right to recover the price, unless from other circumstances it can be collected that the intention was that the property should not at once vest in the purchaser. Such an intention is generally shown by the fact of some further act being first required to be done such as, for instance, in most cases, delivery; in some cases, actual payment of the price; and in other cases, weighing

Heilbutt v.
Hickson.

the property, upon an agreement for a sale thereof, passes or not, depends upon the intention of the parties to the agreement. See Macomber v. Parker, 13 Pick. 182, 183; Shaw C. J. in Sumner v. Hamlet, 12 Ib. 76, 82; Fuller v. Bean, 34 N. H. 290; Prescott v. Locke, 51 Ib. 101, 102, 103; Russell v. Carrington, 42 N. Y. 118; Bellows J. in Ockinton v. Rickey, 41 N. H. 279, 280; Kelsea v. Haines, Ib. 246, 353; Cunningham v. Ashbrook, 20 Mo. 553; Fitch. Burk, 38 Vt. 689; Stone v. Peacock, 35 Maine, 388; Bellows v. Wells, 36 Vt. 599; Morse v. Sherman, 106 Mass. 433; Dugan v. Nichols, 125 Ib. 43; Gleason v. Knapp, 26 U. C. C. P. 553; Ross v. Eby, 28 Ib. 316; Gibson v. McKean, 3 Pugsley (N. B.), 299; Sprague v. King, 1 Pugsley & Burbridge (N. B.) 241; Hurd v. Cook, 75 N. Y. 454; Chapman v. Shepard, 39 Conn. 413; Dyer v. Libby, 61 Maine, 45; Lester v. East, 49 Ind. 588, and cases cited; Cooley C. J. in Wilkinson v. Holiday, 33 Mich. 386, cited post, § 319, note (c); Lord Coleridge C. J. in Ogg v. Shuter, L. R. 10 C. P. 159, 162, 163. It is clear that the rule in regard to something remaining to be done does not apply if the parties have made it sufficiently clear whether or not they intend that the property shall pass at once, and that their intention must be looked at in every case. Channell B. in Turley v.

Bates, 2 H. & C. 200, 211; Logan v. Le Mesurier, 11 Moore P. C. C. 116; Cooley C. J. in Wilkinson v. Holiday, 33 Mich. 386. This intent is to be determined by the jury; De Kidder v. McKnight, 13 John. 294; McClung v. Kelley, 21 Iowa, 508; Riddle v. Varnum, 20 Pick. 283; George v. Stubbs, 26 Maine, 250; Marble v. Moore, 102 Mass. 443; Merchants' National Bank v. Bangs, 102 Ib. 291; Kelsea v. Haines, 41 N. H. 253; Fuller v. Bean, 34 Ib. 290; Dyer v. Libby, 61 Maine, 45; unless it is plain as matter of law that the evidence will justify a finding but one way. Merchants' National Bank v. Bangs, 102 Mass. 291, 296. But this intention, as to the time when the title is to pass, can be ascertained only from the terms of the agreement as expressed in the language and conduct of the parties, and as applied to known usage and the subject-matter. It must be manifested at the time the bargain is made. Foster v. Ropes, 111 Mass. 10; Cooley J. in Lingham v. Eggleston, 27 Mich. 326, 327. Where the purchaser had paid the vendor for the articles purchased, and was to remove them when he pleased, and nothing more was to be done between the parties to complete the sale, it was held to be a reasonable inference that the parties intended an executed sale. Chapman v. Shepard, 39 Conn. 413.]