§ 347. In Kimberly v. Patchin, (b) the owner of a large mass of wheat lying in bulk gave the vendee a receipt acknowledging himself to hold 6,000 bushels, sold for a specified price, subject to the vendee's order: and the title was held to have passed by the sale. (c) Whitehouse v. Frost (post, § 354) was followed and approved. In Russell v. Carrington (d) the court of appeals of New York applied the same principle to similar facts. § 348. In Olyphant v. Baker (e) the vendor sold barley in bulk at a certain price per bushel, the quantity to be afterwards ascertained. The barley being in the vendor's storehouse, which was to be surrendered to another person at a future day, it was agreed that the barley should be allowed to remain in the store .... without any agency in delivering them on the part of the defendant, and from the time the agreement was made the plaintiff became the owner thereof. . . . . The sale in question was in fact of a particular lot of sheep and lambs, and not of a certain undesignated number to be selected and delivered at a future time, and the postponement of the time for taking them away did not prevent the title passing to the plaintiff." This case was discussed very fully on the evidence of intention. In Arnold v. Delano, 4 Cush. 33, 40, Shaw C. J. said: "The reason why marking, measuring, weighing, &c. are necessary is, that the particular goods may be identified." To the same effect is the language of Chancellor Kent, that if the goods "be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified." 2 Kent, 496.] (b) 19 N. Y. 330. (c) [The case of Kimberly v. Patchin was distinguished in Foot v. Marsh, 51 N. Y. 288, in which it appeared that the defendant executed to the plaintiff a receipted bill of sale of 100 barrels and 4,000 gallons of oil, "to be delivered when called for, subject to twenty shillings per month storage, the quality of the oil to be like the sample delivered." The oil was understood to be a portion of 150 barrels, averaging forty gallons each, consisting of three different qualities, six- (d) 42 N. Y. 118. house till the vendor transferred the possession of the building: and the purchaser agreed with the transferee of the building to pay storage after that time. The goods were destroyed by fire before being measured, but after the building had passed out of the possession of the vendor. Held, that the facts showed an intention to pass the property in the barley notwithstanding it had not yet been measured, and that the loss must fall on the buyer. § 349. In Rourke v. Bullens (f) the vendor sold a hog on credit, the hog to be kept and fattened till the buyer called for it, and then to be paid for at the current market price according to its weight when called for, and this was held to be a contract purely executory, not passing the property to the buyer. (g) § 350. In Cushman v. Holyoke, (h) where the property had actually passed to the purchaser in goods that were to be taken by him to another place, and there measured to fix the price, it was held that the vendor, and not the purchaser, must bear the loss and depreciation in measurement incident to the removal according to the common course of conveyance. § 351. The cases of Woods v. Russell and Clarke v. Spence have not met with universal acceptance in America. Thus, in Andrews v. Durant, (i) the New York court of appeals held, in a case where the facts were similar to those in the above cases, that the property did not pass to the party ordering the goods till the completion of the work; and the same decision was given in Massachusetts in Williams v. Jackman, decided in the supreme judicial court in January, 1861. (k) In these two cases the decision of the exchequer chamber in Wood v. Bell (1) was not before the courts, not being cited in the latter case, and the former case bearing date in 1853, three years before the decision in the exchequer chamber. (m) agreement in a contract concerning the mode or time of making payment of the purchase-money, or providing for the appointment of a superintendent of the work, may have an important bearing in determining the question whether the property passes to the purchaser before the completion of the chattel. It is, however, erroneous to say, as is sometimes stated by text writers, that an agreement to pay the purchase-money in instalments, as certain stages of the work are completed, or a stipulation for the employment of a superintendent by the purchaser to overlook the work and see that it is done according to the tenor of the contract, will of itself operate to vest the title in the person for whom the chattel is intended. Such stipulations may be very significant, as indicating the intention of the parties, but they are not in all cases decisive. Both of them may coexist in a particular case, and yet the property may remain in the builder or manufacturer. Even in England, where the cases go the farthest in holding that property in a chattel in the course of construction under a contract passes to and vests in the purchaser, these stipulations are not always deemed to be conclusive of title in him. It is a question of intent, arising on the interpretation of the entire contract in each case." And it was held in the case that, under a contract to build three light vessels for the United States, and to deliver them completed within a fixed time, the builder to be gov erned during the progress of the building of them by the directions of an agent of the United States, and to perform the work to his satisfaction, for a price to be paid after their completion, with a provi sion that the United States may at any time declare the contract null, no title to the vessels passes to the United States until their completion and delivery. The opinion given by Mr. Chief Justice Bigelow in the above case is one of great value and importance. See Wright v. Tetlow, 99 Mass. 397; Holderness v. Rankin, 2 De G., F. & J. 258; Williams v. Jackman, 16 Gray, 514; Sanford v. Wiggins Ferry Co. 27 Ind. 522; Elliott v. Edwards, 6 Vroom, 265; M'Conihe v. N. York & Erie R. R. 20 N. Y. 495; The U. S. Revenue Cutter, Pac. Law Rep. January 23, 1877, 4 Am. Law Times Rep. N. S. 39; Derbyshire Estate, Lang's Appeal, 81 Penn. St. 18; Scull v. Shakespear, 75 Penn. St. 297; Coursin's Appeal, 79 Ib. St. 220; § 335, note (x), ante. In Mount Hope Iron Co. v. Buffington, 103 Mass. 62, Mount Hope it was shown that an engine Iron Co. v. Buffington. was built by A. for B. under a contract which provided that it should be paid for as the work in it progressed, reserving a margin of twenty per cent. until it should "be started in a satisfactory manner;" that it should be delivered at B.'s dock, and transported at B.'s expense to his works; that B. should prepare a foundation for it, and add to it materials and work of his own; and that A. should be required to furnish at B.'s works only the skilled labor required to set up and start it. The engine was delivered at the wharf, transported to the works, and the whole price paid except the twenty per cent., when it was attached as the property of A. It was held that the title in the property had passed to B. as against A. and his creditors. See Phelps v. Willard, 16 Pick. 29.] executory § 352. WHEN the agreement for sale is of a thing not specified, as of an article to be manufactured, or of a certain quan- This is an tity of goods in general, without a specific identification agreement. of them, or an "appropriation" of them to the contract, as it is technically termed, the contract is an executory agreement, and the property does not pass. (a) [Until the parties are agreed on the specific individual goods the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them if they did answer the description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained which are the very goods sold. It can make no difference, although the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. In such a case the reason still applies; the parties did not intend to transfer the property in one portion of the stock more than in another, and the law, which only gives effect to their intention, does not transfer the property in any individual portion.] (b) (a) [Browning v. Hamilton, 42 Ala. 484.] (b) [Blackburn Sales, 122, 128; Warren v. Buckminster, 24 N. H. 336; O'Neil v. McIlmoyle, 34 U. C. Q. B. 236; Robertson v. Strickland, 28 Ib. 221; Middlebrook v. Thompson, 19 Ib. 307; McDougall v. Elliott, 20 Ib. 299; Cox v. Jones, 24 Ib. 81; Dunning v. Gordon, 4 Ib. 399; There is but little difficulty in the application of this rule. In Worcester. the same cellar of A., but no separation was made. B. sold and delivered to C. Scudder v. 100 barrels of the same pork, and afterwards sold D. the remaining 150 barrels, and gave him an order on A. therefor, which, being presented to A., he assented to hold the same on storage for D., but nothing was done to distinguish or separate the 150 barrels from the other pork of similar brand still in A.'s cellar. While the pork remained so stored, B. became insolvent, and A. then refused to deliver the 150 barrels to D. on said order. D. thereupon brought an action of replevin against A. for the 150 barrels of pork, but the court held that the action could not be sustained. See Ropes v. Lane, 9 Allen, 502; Golder v. Ogden, 15 Penn. St. 528; Waldo v. Belcher, 11 Ired. 609; Field v. Moore, Hill & Denio, 418; Merrill v. Hunnewell, 13 Pick. 215, 218; Gardner v. Dutch, 9 Mass. 427; Messer v. Woodman, 22 N. H. 172; Bailey v. Smith, 43 Ib. 141; Hutchinson v. Hunter, 7 Penn. St. 140; Bell v. Farrar, 41 Ill. 400; Rodee v. Wade, 47 Barb. 63; Tompkins v. Tibbits, 1 Hannay (N. B.), 317; Pollock v. Fisher, 1 Allen (N. B.), 515; Rigney v. Mitchell, 2 U. C. C. P. 266; Stephens v. Tucker, 55 Ga. 543; Morrison v. Woodley, 84 Ill. 192. The decisions upon this subject, however, are not harmonious. In Chapman v. Shepard, 39 Conn. 413, a decision was made entirely at variance with the above Connecticut. case of Scudder v. Worcester. There A. sold to B. a mass of Shepard. bags of meal, of uncertain numbers, on board a vessel, at a certain price per bag, to be paid in cash. B. without paying A., and before the bags had been counted, sold C. five hundred of them, C. giving his promissory note therefor, which he paid at maturity. C. informed A. of his purchase, who told him he could remove the bags when he pleased, but after he had removed a part he requested him to let the rest remain as a bulkhead for some corn, until the corn was discharged. In trover afterwards Chapman v. brought by C. against A. for the remainder of the five hundred bags, it was held that A. was estopped from claiming, either that the title had not passed to B. or that he had a lien on the bags for the price which B. was to have paid. Seymour J. said: "The case depends upon the inquiry whether it be, as the defendant's counsel contend, an absolute rule of law that, upon the sale of a portion of a larger bulk, the contract remains in judgment of law executory until the portion sold is severed and separated for the purchaser from the mass. It must be conceded that this question is not free from difficulty, and that in regard to it respectable authorities differ. In regard to a large class of cases the law is indisputably as the defendant claims. If I sell ten out of a drove of one hundred horses, to be selected, whether by myself or by the vendee, no title can pass until the selection is made. This rule prevails wherever the nature of the article sold is such that a selection is required, whether expressly provided for or not by the terms of the contract. If the articles differ from each other in quantity or quality or value, the necessity of a selection is clearly implied. In all such cases the subject-matter of the contract cannot be identified until severance, and the severance is necessary in order that the subject-matter of the contract may be made certain and definite. But where the subject-matter of the sale is part of an ascertained mass of uniform quality and value, no selection is required, and in this class of cases it is affirmed by authorities of the highest character, that severance is not, as matter of law, necessary in order to vest the legal title in the vendee, to the part sold. The title may and will pass if such is the clear intention of the contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title." Phillips v. Ocmulgee Mills, 55 Ga. 633. The English cases relied on by the learned court were Whitehouse v. Frost, and Busk v. Davis, stated in the text; and the de |