of trade, it was the seller's duty to count the bales over, to see whether each bale contained the number specified in the contract, and this had not been done when the goods were destroyed by fire. This was a decision of Lord Ellenborough at nisi prius, and the reporter states that, after the plaintiff's nonsuit, he brought another action in the common pleas, and was again nonsuited by Sir James Mansfield C. J. who concurred in opinion with Lord Ellenborough. In Simmons v. Swift (1) the sale was of a specified stack of bark, at 97. 58. per ton, and a part was weighed and taken away, and paid for. Bayley J. and the majority of the court held that the property had not passed in the unweighed residue, (m) although the specific thing was ascertained, because it was to be weighed, "and the concurrence of the seller in the act of weighing was necessary." (n)

Simmons v. Swift.

Logan v. Le Mesurier.

§ 324. In Logan v. Le Mesurier (0) the sale was on the 3d of December, 1834, of a quantity of red pine timber, then lying above the rapids, Ottawa River, stated to consist of 1,391 pieces, measuring 50,000 feet, more or less, to be delivered at a certain boom in Quebec, on or before the 15th of June then next, and to be paid for by the purchasers' notes at ninety days from the date of sale, at the rate of 91d. per foot, measured off. If the quantity turned out more than 50,000 feet, the purchasers were to pay for the surplus, on delivery, at 94d., and if it fell short, the difference was to be refunded by the sellers. The purchasers paid for 50,000 feet before delivery, according to the con(1) 5 B. & C. 857.

Simmons v.

(m) [Although there was originally a period of credit given for the bark, yet the day of payment was passed at the time when the part taken was paid Swift, obser- for, and when the plaintiff revations on. quired the defendant to take and pay for the rest of the bark. The action was for bark sold and delivered, and all the judges agreed that there had been no delivery, and consequently the action could not be maintained. The decision of the point respecting the transfer of title was not called for, and was made by a divided court.]

(n) [See Prescott v Locke, 51 N. H. 94, 103, 104; Stevens v. Eno, 10 Barb. 95; Dixon v. Myers, 7 Grattan, 240; Waldo v. Belcher, 11 Ired. 609; Messer v. Wood

man, 22 N. H. 178. A sale was made of
a large pile of slate, at a cer- Young v.
tain price per ton, to be paid Austin.
for as parcels of it should from time to
time be taken away, and the purchaser,
having paid the price of fourteen tons,
was held entitled to have that quantity
weighed and separated for him, but that
until such separation he had no property
in any specific fourteen tons, and could
not maintain trover therefor. Young v.
Austin, 6 Pick. 280.]

(0) 6 Moore P. C. 116. See, also, Wallace v. Breeds, 13 East, 522; Rusk v. Davis, 2 M. & S. 397; Austen v. Craven, 4 Taunt. 644; Shepley v. Davis, 5 Taunt. 617; Withers v. Lyss, 4 Camp. 237 ; Boswell v. Kilborn, 15 Moore P. C. 309; [Hutchinson v. Hunter, 7 Penn. St. 140.]

tract. The timber did not arrive in Quebec till after the day prescribed in the contract, and when it did arrive, the raft was broken up by a storm, and a great part of the timber lost, before it was measured and delivered. Held that the property was not transferred until measured, (p) and that the purchasers could recover back the price paid for all timber not received, and damages for breach of contract.

§ 325. In Gilmour v. Supple, (q) where the facts were identical with the preceding, as regards the sale of a raft of tim- Gilmour v. ber, which was broken up by a storm, the words of the Supple. contract were: "Sold Allan, Gilmour & Co a raft of timber, now at Carouge, containing white and red pine, the quantity about 71,000 feet, to be delivered at Indian Cove booms. Price for the whole 74d. per foot." The raft was delivered to the buyer's servant at the appointed place, and broken up by a storm the same night. The court held, in this case, that the property had passed, because it was proven that the raft had been measured before delivery, by a public officer, and it was not to be measured again by the vendor. The buyer was at liberty to measure it for his own satisfaction, as in Swanwick v. Sothern, (r) but the vendor had lost all claim on the timber, and all lien for price, and there was nothing further for him to do, either alone, or concurrently with the purchaser. (8)

Goods

measured satisfac

for buyer's

tion only. Swanwick

v. Sothern.

§ 326. In Acraman v. Morrice, (t) the defendant had contracted for the purchase of the trunks of certain oak trees from Acraman one Swift. The course of trade between the parties was, v. Morrice. that after the trees were felled, the purchaser measured and marked the portions that he wanted. Swift was then to cut off the rejected parts, and deliver the trunks at his own expense, conveying them from Monmouth to Chepstow. The timber in controversy had been bought, measured, and paid for, but the rejected portions had not yet been severed by Swift, when he became bankrupt, and the felled trees then lay on his premises. Defendant afterwards had the rejected portions severed by his own men, and carried away the trunks for which he had paid. Action in trover,

(p) [Prescott v. Locke, 51 N. H. 94; Gibbs v. Benjamin, 45 Vt. 124.]

(q) 11 Moore P. C. 551; [and 5 U. C. C. P. 318.]

(r) 9 Ad. & E. 895.

(s) [See Prescott v. Locke, 51 N. H. 94; Gibbs v. Benjamin, 45 Vt. 124; Bethel Steam Mill Co. v. Brown, 57 Maine, 9; Cooper v. Bill, 3 H. & C. 722.]

(t) 8 C. B. 449.

by the assignees of bankrupt. Held, property had not passed to buyer, Wilde C. J. saying, that "several things remained to be done by the seller; . . . . it was his duty to sever the selected parts from the rest, and convey them to Chepstow, and deliver them at the purchaser's wharf. (u)

Tansley v.

§ 327. But in Tansley v. Turner (a) the sale by the plaintiff was as follows: "1833. Dec. 26 Bargained and sold Turner. Mr. George Jenkins all the ash on the land belonging to John Buckley, Esq., at the price per foot cube, say 18. 74d. Payment on or before 29 Sept. 1834. The above Geo. Jenkins to have power to convert on the land. The timber is now felled; and some trees were measured and taken away the same day. The remaining trees were marked and measured some time afterwards, and the number of cubic feet in the several trees were taken, and the figures put down on paper by the plaintiff's servant, but the whole was not then added up, and the plaintiff said he would make out the statement and send it to Jenkins. This was not done, but it was held that the property had passed, nothing remaining to be done by the vendor (y) to the thing sold. (z) Cooper v. Cooper v. Bill (a) was very similar to the above case in Bill. the facts, and was decided in the same way, Tansley v. Turner, however, not being cited by the counsel or the court. § 328. In Castle v. Playford (b) the contract was for the sale Castle v. of a cargo of ice to be shipped, "the vendors forwarding bills of lading to the purchaser, and upon receipt thereof the said purchaser takes upon himself all risks and dangers of the seas, rivers, and navigation of whatever nature or kind soever, and the said Playford to buy and receive the said ice on its arrival at ordered port ... and to pay for the same in cash on delivery at 20s. per ton, weighed on board during delivery." Decla

Playford

(u) [See Prescott v. Locke, 51 N. H. 94; Bethel Steam Mill Co. v. Brown, 57 Maine, 9; Boynton v. Veazie, 24 Ib. 286; Terry v. Wheeler, 25 N. Y. 520; Kelsea v. Haines, 41 N. H. 246, 255; Hale v. Huntley, 21 Vt. 147; Brewer v. Salisbury, 9 Barb. 511; Olyphant v. Baker, 5 Denio, 379; Birge v. Edgerton, 28 Vt. 291; Hutchins Gilchrist, 23 Ib. 88; Mills v. Camp, 14 Conn. 219; Bradley v. Wheeler, 44 N. Y. 495.]

(x) 2 Scott, 238; 2 Bing. N. C. 151.

(y) [That it is indifferent whether the thing is to be done by the vendor or purchaser, see Fuller v. Bean, 34 N. H. 300, 301; Prescott v. Locke, 51 Ib. 94, cited ante, § 319, note (c); Gibbs v. Benjamin, 45 Vt. 124, 128.]

(z) [See Cunningham v. Ashbrook, 20 Mo. 553; Birge v. Edgerton, 28 Vt. 291; Hyde v. Lathrop, 3 Keyes, 600; Mills v. Camp, 14 Conn. 219.]

(a) 3 H. & C. 722; 34 L. J. Ex. 161. (b) L. R. 5 Ex. 165; 7 Ex. 98.

ration for the price by the vendor, and plea that the cargo did not arrive at the ordered port, and the plaintiffs were not willing and ready to deliver. On demurrers to the declaration and the plea, Martin and Channell BB. were of opinion (Cleasby B. dis.) that the property did not pass by the terms of the contract, that the time for payment had not arrived, and that the defendant was not liable but in the exchequer chamber the judgment was unanimous for the plaintiff, Cockburn C. J. and Blackburn J. expressing a very decided opinion that the property passed by the agreement, but the case was not decided on that point, but on Where the ground that whether the property passed or not, the defendant undertook to pay for it if delivery was prevented by dangers of the sea; and that in cases where property is to be paid for on delivery, and where the risk of delivery is assumed by the purchaser, if the destruction of the property prevents the delivery, the payment is still due, as decided in the cases below cited. (c)

sumes risk

buyer asof delivery price must be paid, property does not goods de fore deliv

even if

pass, if

stroyed be

ery.

v. Kitch

§ 329. Similar questions were involved in Martineau v. Kitching, (d) where sugars were sold by the manufacturer Martineau to a broker. The terms were, "Prompt at one month: ing. goods at seller's risk for two months." The goods had been marked, and paid for in advance of being weighed, at an approximate sum, which was to be afterwards definitely adjusted and settled when the goods came to be weighed, on delivery; and part of them had been taken away by the purchaser. The residue was destroyed by fire after the lapse of the two months, and before being weighed. Held by Cockburn C. J. that the property had passed to the purchaser: and the other members of the court seemed to agree with him, but the case was decided on the same ground as that of Castle v. Playford, supra.

cover the price, if the risk is clearly
thrown on the purchaser, by ascertaining
the amount as nearly as may be, by evi-
dence competent for that purpose. Black-
burn J. in Martineau v. Kitching, L. R. 7
Q. B. 455, 456; Alexander v. Gardner, 1
Bing. N. C. 671; Turley v. Bates, 2 H. &
C. 200; Castle v. Playford, L. R. 7 Ex.
98; McConnell v. Hughes, 29 Wis. 537.]
(d) L. R. 7 Q. B. 436.

for on delivery at a particular

§ 330. A statement is made by the learned editors of Smith's Goods sold Leading Cases, vol. i. p. 148, that "it was held in a to be paid modern case in the court of exchequer (which seems not to have been reported) that the property in a speciplace. fied chattel bought in a shop to be paid for upon being sent home did not pass before delivery;" and in accordance with this is the dictum of Cockburn C. J. in the Calcutta Company v. De Mattos, (e) that "if by the terms of the contract the seller engages to deliver the thing sold at a given place, and there be nothing to show that the thing sold was to be in the mean time at the risk of the buyer, the contract is not fulfilled by the seller unless he delivers it accordingly." In both these instances, as in Acraman v. Morrice, (f) something remained to be done by the seller to the thing sold in order to make the agreement an exeLangton v. cuted contract. In Langton v. Higgins (g) it was held Higgins. that where the buyer had purchased in advance all the Goods put crop of peppermint oil to be raised and manufactured packages. by a farmer, the property passed to the buyer in all the oil which had been put by the farmer into the buyer's bottles and weighed, although never delivered to him.

in buyer's

Where something

is to be

§ 331. But the property in goods will pass, even though something remain to be done by the vendor, in relation to the goods sold, after their delivery to the vendee. (h) done to the Thus, where by the custom of the trade, if the goods sold continued to lie at the wharf after the sale, the vendor was bound to pay for the warehousing during

goods by vendor

after delivery.

(e) 32 L. J. Q. B. 322, 355.

(ƒ) 8 C. B. 449; 19 L. J. C. P. 57. (g) 4 H. & N. 402; 28 L. J. Ex. 252. (h) [See post, § 334, note (t); Nesmith J. in Kelsea v. Haines, 41 N. H. 254, 255; Richmond Iron Works v. Woodruff, 8 Gray, 447; Wells J. in Odell v. Boston & Maine Railroad, 109 Mass. 50, 52; Scudder v. Bradbury, 106 Ib. 422. In Macomber Parker, 13 Pick. 175, 183, Wilde J. said: "Where the goods are actually delivered, that shows the intent of the

Actual delivery impor

tant as to intention as to title.

parties to complete the sale by the delivery, and the weighing or measuring or counting afterwards would not be considered as any part of the contract

of sale, but would be taken to refer to the adjustment of the final settlement as to the price. The sale would be as complete as a sale upon credit, before the actual payment of the price." Lingham v. Eggleston, 27 Mich. 324; Cooley C. J. in Wilkinson v. Holiday, 33 Ib. 388. See per Shaw C. J. in Orcutt v. Nelson, 1 Gray, 543, and in Sumner v. Hamlet, 12 Pick. 82, 83, where it was said that the rule that the property does not pass when anything remains to be done, &c. applies to cases of constructive delivery and constructive possession, and not to cases where there is an actual delivery. The same is said by Nesmith J. in Kelsea v. Haines, supra.]