the handing over of the documents; and the inquiry must be whether there is any sufficient indication in the contract of a contrary intention. As to one half of the price, the intention that it should be paid only on completion of the delivery at Rangoon,' seems to me as clearly declared as words could possibly declare it; and consequently I think as to that half of the price no right vested in De Mattos unless and until there was a complete delivery at Rangoon. But consistently with this there might be an intention that there should be a complete vesting of the property in the goods in the company, and a complete vesting of the right to the half of the price in De Mattos, so as in effect to make the goods be at the risk of the company, though half the price was at the risk of De Mattos; so that the goods were sold and delivered, though the payment of half the price was contingent on the delivery at Rangoon, and this I think is the true legal construction of the contract." Wightman J. was of opinion that on the true construction of the contract the whole cargo remained the property of the vendor and at his risk; that he was bound to deliver the whole at Rangoon; and that the transfer of the policy and bill of lading to the company was a security to protect the company in recovering back their advance of one half the price in the event of De Mattos's failure to make delivery at Rangoon. Cockburn C. J. thought that the property in the coals passed to the company, subject to the vendor's lien for the payment of the price; that the coals, when shipped, were specifically appropriated to the company; and that by the transfer of the bill of lading they obtained dominion of the cargo, and could have disposed of it at their pleasure. But that De Mattos remained bound to make delivery in Rangoon, and by breach of that contract was bound to return the half of the price already paid, and to lose his claim for the remainder. In the exchequer chamber, Erle C. J. expressed his concurrence with the opinion of Blackburn J. as to the true meaning and effect of the contract, and Willes J. and Channell B. did the same. Williams J. merely expressed his assent to the views of Cockburn C. J. Martin B. gave his view of the true intention of the parties, without declaring whether and when, if at all, the property passed, but remarked: "I cannot say that I agree with my brother Blackburn's judgment:" and Pigott B. expressed his concurrence with the interpretation of the contract by Martin B. Jenner v. § 375. In Jenner v. Smith, (e) where the sale was made by sample, and was of two pockets of hops out of three Smith that were lying at a specified warehouse, the vendor instructed the warehouseman to set apart two out of the three pockets for the purchaser, and the warehouseman thereupon placed on two of them a "wait-order card," that is, a card on which was written, "to wait orders," and the name of the vendee; but no alteration was made in the warehouseman's books, and the vendor remained liable for the storage. The vendor then sent an invoice with the numbers and weights to the buyer of these two pockets with a note at the foot, "The two pockets are lying to your order." Held that the property had not passed, because the buyer had not made the vendor his agent for appropriating the goods to the contract, nor abandoned his right of comparing the bulk with the sample, or of verifying the weight. There was neither previous authority nor subsequent assent to the appropriation. (f) In Ex parte Pearson, re Wiltshire Iron Company, (9) the purchaser had ordered and paid for the goods, and Pearson. the company loaded the goods on a railway to his address, and sent him the invoice after the presentation of a petition for winding up the company, but before order made, and it was held that the property had passed to the purchaser and could not be taken by the official liquidator as assets of the Vendor's § 376. Before leaving this branch of the subject, it must be in is well to notice that the property does not pass even conformity when the vendor has the power to elect, unless he exerwith the contract. cise it in conformity with the contract. He cannot send a larger quantity of goods than those ordered and throw the selection on the purchaser. (gl) Thus, in Cunliffe v. Harrison, (h) it was held that where an order was given for ten hogsheads of claret, and the vendor sent Ex parte election Cannot elect more than contract re quires, and leave buy er to select. (e) L. R. 4 C. P. 270. (f) [It seems to be a clear inference from this case, that, on a sale of unascertained goods, the purchaser may authorize the seller to make a selection and appropriation, which shall pass the title and bind the purchaser, without any further assent on his part. The remarks of Willes J. in Bog Lead Mining Co. v. Montague, 10 C. B. N. S. 488, 490, quoted ante, § 155, note (o), are worthy of attention in this connection. See Hyde v. company. Lathrop, 2 Abb. N. Y. App. Decis. 436; Burnett v. McBean, 16 U. C. Q. B. 466; Coffey v. The Quebec Bank, 20 U. C. C. P. 110, 555; Lynch v. O'Donnell, 127 Mass. 311.] (g) L. R. 3 Ch. App. 443. (g1) [See Croninger v. Crocker, 62 N. Y. 151.] (h) 6 Ex. 903. See, also, Hart v. Mills, 15 M. & W. 85, and Dixon v. Fletcher, 3 M. & W. 145. Cunliffe v. Green. fifteen, the action for goods sold and delivered would . not lie against the purchaser (who refused to keep any of the hogsheads), on the ground that no specific hogsheads had been appropriated to the contract, and thus no property had passed. And in Levy v. Green, (i) the goods sent in Levy v. excess of those ordered were articles entirely different, but packed in the same crate: the order being for certain earthenware teapots, dishes, and jugs, to which the plaintiff had added other earthenware articles of various patterns not ordered. In the court below (k) there was an equal division of the judges: Lord Campbell and Wightman J. holding that the defendant had a right to reject the whole on account of the articles sent in excess, and Coleridge and Erle JJ. being of a different opinion; but in the exchequer chamber, Martin, Bramwell, and Watson BB. and Willes and Byles JJ. were unanimous in holding, with Lord Campbell and Wightman J., that the property had not passed, and that the purchaser had the right to reject the whole. (1) § 377. The decisions as to subsequent appropriation in cases where the agreement was for the delivery of a chattel to be manufactured begin with Mucklow v. Mangles, (m) in 1803. Pocock ordered a barge from one Royland, a barge builder, and advanced him some money on account, and paid more as the work proceeded, to the Mucklow v. Mangles. whole value of the barge. When nearly finished, Pocock's name was painted on the stern, but by whom and under 319. (k) 27 L. J. Q. B. 111. (1) [Tarling v. O'Riordan, 2 L. R. Ir. 82; Shannon v. Barlow, 9 Ir. Jur. N. S. 229. In Rommel v. Wingate, 103 Mass. Election by 327, the plaintiff in New York wrote to the defendants in vendor must conform to contract. Subse quent ap of chattel propriation to be man- (i) 1 E. & E. 969, and 28 L. J. Q. B. ceive a cargo of 375 tons, to be loaded at once. It did not bind them to take a larger cargo, or one which could not be shipped substantially as speedily as proposed by the plaintiff in his letter. If, by a change of circumstances, the plaintiff was unable to comply with this order of the defendants, he should have so informed them. He had no right to substitute a larger cargo, deliverable at a more remote time, in place of the cargo ordered by the defendants, and the defendants were not obliged to receive the substituted cargo upon its arrival in Boston." See Barrowman v. Free, L. R. 4 Q. B. D. 500.] Boston, offering to sell them coal, and stating that he had a vessel of 375 tons which he could load " on Monday." The defendants telegraphed in reply, on the Monday next after the date of the letter, "Ship that cargo, 375 tons, immediately." The plaintiff did not begin to load till nine days afterwards, and then shipped a cargo of 392 tons. Morton J. said: "This bound the defendants to re (m) 1 Taunt. 318; [Dempsey v. Carson, 11 U. C. C. P. 462.] STANFORD LAW LIBRARY what circumstances is not stated in the report. The barge was finished and seized on execution against Royland two days after- • wards, but before he had delivered it up to Pocock, and the sheriff's officer delivered it to Pocock under an indemnity. Royland had committed an act of bankruptcy before the barge was finished, and the action was trover by his assignees against the sheriff's officer. Held that the property had not passed, Heath J. saying: "A tradesman often finishes goods which he is making in pursuance of an order given by one person, and sells them to another. If the first customer has other goods made for him within the stipulated time, he has no right to complain; he could not bring trover against the purchaser of the goods so sold." § 378. In Bishop v. Crawshay, (n) it was held by the queen's Bishop v. bench, in 1824, that no property passed to the deCrawshay. fendant in goods which he had ordered from a manufacturer in the country, and on account of which he had accepted a bill of exchange for 400. The manufacturer had received the order on the 26th January, had committed an act of bankruptey not known to the defendant on the 5th February, and on the 6th drew the above mentioned bill of exchange. On the 8th the goods were completed and loaded on barges to be forwarded to the defendant, and on the 15th a commission issued against the bankrupt, by whose assignees the action of trover was brought. Holroyd J. said: "The goods were made, but until the money paid was appropriated to these particular goods the defendant could not have maintained trover for them, if they had been even sold to another person." (n1) v. Bell. § 379. In Atkinson v. Bell, (o) already fully explained (ante, Atkinson § 99), the purchaser had ordered the machines; they had been made and packed under his agent's superintendence, and the boxes made ready to be sent, and the vendor had written to ask the purchaser by what conveyance they were (n) 3 B. & C. 415. Discounting bills attach (n) [Where a bill of exchange attached to bills of lading is discounted by a party on the faith of the bills of lading, this constitutes an appropriation of the goods mentioned in the bills of lading, and the consignee therein named cannot, having notice ed to bills of lading constitutes an appropriation of the goods. of the above facts, sell the goods to a third person to satisfy an antecedent debt of his. Holmes v. German Security Bank, 87 Penn. St. 525; First Nat. Bank v. Pettit, 9 Heiskell (Tenn.), 447.] (0) 8 B. & C. 277. [Note to Shawhan v. Van Nest, 15 Am. Law Reg. (N. S.) 153, 160.] on this to be sent, but had received no answer, when he became bankrupt. His assignees then brought an action against the purchaser (who refused to take the goods) for goods bargained and sold, this form of action not being maintainable where the property has not passed. (p) Held that the form of action was misconceived; it should have been for not accepting the goods; the property had not passed, for although the vendor intended them for the purchaser, his right to revoke that intention still existed, and he might have sold the goods to another at any time before Remarks the buyer assented to the appropriation. (p1) This is per- case. haps the strongest case in the books on this subject, for the conduct of the vendor was as near an approximation to a determination of election, without actually becoming so, as one can well conceive. It is distinguishable from Fragano v. Long (4) only on the ground that in this latter case the order was to dispatch the goods for the buyer's account, and when the goods were dispatched it was really the act of the buyer through his agent the seller, and this act of the buyer constituted an implied assent to the appropriation made by the seller, which then became no longer revocable. In Atkinson v. Bell this element was deficient. But there was another circumstance in that case, adverted to in the judg ment of the court, which renders it almost impossible to distinguish it from Rohde v. Thwaites. (r) The defendant had made Kay his agent to procure the machines; and the report states that they were altered so as to suit Kay, and then packed up by Kay's directions, which is equivalent to their being packed up by the buyer's own directions; and surely if the buyer, after goods have been completed on his order, is informed by the seller that they are ready for him, and then examines and directs them to be packed up for him, this constitutes as strong an assent to the appropriation as was given by the purchaser in Rohde v. Thwaites, when he said, without seeing the sugar that had been packed up for him, that he would send for it. Many attempts have been (p) [Sargent J. in Gordon v. Norris, 49 N. H. 376, 382; Bailey v. Smith, 43 Ib, 143, 144; Thompson v. Alger, 12 Met. 428, 443, 444; Jenness v. Wendell, 51 N. H. 63; Spicers v. Harvey, 9 R. I. 582.] (pl) [Gowans v. Consolidated Bank of Canada, 43 U. C. Q. B. 318; Gooderham v. Dash, 9 U. C. C. P. 413; Coleman v. McDermot, 5 Ib. 303; ante, § 335, note (x); Robertson v. Strickland, 28 U. C. Q. B. 221; O'Neil v. McIlmoyle, 34 Ib. 236; Bank of Up. Can. v. Killaly, 21 Ib. 9.] (g) 4 B. & C. 219. |