goods, no property therein passes to the vendee, till such act be done; as in the case of the sale of a stack of bark, at a certain price per ton (k).

In these cases no property passes; and an action cannot be maintained on the count for goods bargained and sold, until there has been a selection and appropriation of the part of the larger parcel of goods. But when the vendor has appropriated part of the quantity sold, for the benefit of the vendee, the property in the article sold passes to the vendee; although the vendor is not bound to part with the possession until he is paid the price. A. having in his warehouse a quantity of sugar, in bulk, more than sufficient to fill twenty hogsheads, agreed to sell twenty hogsheads to B. but there was no note in writing of the contract sufficient to satisfy the Statute of Frauds. Four hogsheads were delivered to, and accepted by B.; A. filled up and appropriated to B. sixteen other hogsheads, and informed him that they were ready, and desired him to take them away. B. said he would take them as soon as he could. It was held that the appropriation having been made by A., and assented to by B., the property in the sixteen hogsheads thereby passed to the latter; and that their value might be recovered by A., under a count for goods bargained and sold (7).

And in the case of a contract to manufacture goods, and then sell them, it is a general rule that no property in the materials, or the article, passes to the vendee, until the article has been finished and delivered, or appropriated to the benefit of, or set apart for, the vendee, with his consent.

In Mucklow v. Mangles (m), which was an action of trover for a barge, it was held that although the party who ordered it to. be built had paid money on account equal to the price, and his name had been painted thereon by the builder, the vendee acquired no property in the barge, it not having been delivered to the vendee. The bargain in that case does not seem to have provided for the advances which were made; and the advances do not appear to have been regulated by the progress of the work. In a subsequent case (n) where by the contract for building a ship,

(k) Simmons v. Swift, 5 B. & C. 857; 8 D. & R. 693, S. C.

(1) Rohde v. Thwaites, 6 B. & C. 388.

(m) 1 Taunt. 318.

(n) Woods v. Russell, 5 B. & Ald.

942. See observations thereon, Atkinson v. Bell, 8 B. & C. 282, per Bayley, J.; Carruthers v. Payne, 5 Bing. 277; 2 M. & P. 429, S. C., per Best, C. J., and Parke, J.; see Oldfield v. Lowe, 9 B. & C. 73, 78.

given portions of the price were to be paid according to the progress of the work, it was considered that by the payment of those portions of the price, the ship was irrevocably appropriated to the person paying the money. It was a case in effect of a purchase of the specific articles of which the ship was made. This fact; and the circumstance that the ship-builder had signed the certificate to enable the purchaser to have the ship registered in his name; induced the Court to hold that the general property in the ship had passed to the purchaser, although not quite finished, and delivered according to the contract.

In Atkinson v. Bell (o) it appeared, that A, having a patent for certain spinning machinery, received an order from B. to have some spinning frames made for him. A. employed C. to make the machines for B., and informed the latter he had so done. After the machines had been completed, A. ordered them to be altered. They were afterwards completed according to this new order, and packed up in boxes for B.; and C. informed B. that they were ready, but he refused to accept them. It was held that C. could not recover the price from B. in an action for goods bargained and sold; or for work and labour, and materials. Bayley, J., observed, "as to the counts for work and labour, if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour, and your materials to any other person. Having bestowed his labour at your request on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and materials to any other person. person. No right to maintain any action vests in him during the progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered, or, if the employer refuse to accept, a special action on the case for such refusal. But he cannot maintain an action for work and labour; because his labour was bestowed on his own materials, and for himself, and not for the person who employed him.”

If, however, both the bidder and purchaser treat the article,

(e) 8 B. & C. 277.

when made, as finished, and consider it as constructively delivered, the property therein vests in the purchaser. A chariot was made to the plaintiff's order, and paid for by him. When finished in other respects, the plaintiff ordered a front seat to be added; but the builder being slow in making the addition, the plaintiff sent for the chariot repeatedly, and the builder promised to deliver it. The plaintiff being afterwards dissatisfied ordered the chariot to be sold; and, according to the custom of the trade, it stood in the builder's warehouse for the purpose, the front seat not having been added, until the builder became a bankrupt. It was held, that the plaintiff had become the owner of the chariot, and might maintain trover against the builder's assignee. (p).

The plaintiff verbally contracted to build a waggon for the defendant. Whilst it was being made upon the plaintiff's premises, the defendant procured a third person to perform part of the work, and paid him for his time. It was afterwards finished, but defendant would not receive it. In an action for the price, it was held that the property in the waggon had not vested absolutely in the defendant; and that there was not a sufficient acceptance under the Statute of Frauds (q).

In the case of a sale of goods by auction, if several lots, put up separately, be separately knocked down to the same person, and on each occasion the auctioneer write down the vendee's name, there is, in point of law, a distinct and independent contract as to each lot; although the purchaser afterwards sign one memorandum, that he has bought the several lots (r). But in the case of a party, upon one and the same occasion, and at the same time, verbally ordering various articles of a tradesman, there is not necessarily a distinct contract as to each article, although a separate price for each was fixed; and it seems to be a question, whether, under all the circumstances, it was intended to be an entire contract. In Baldey v. Parker (s), it appeared that 4. went to the shop of B. and Co. linendrapers, and contracted for the purchase of various articles; a separate price for each being agreed upon. 4. then assisted in cutting some of the goods, and

(p) Carruthers v. Payne, 2 M. & P. 429; 5 Bing. 270, S. Č.

99.

(q) Maberley v. Sheppard, 10 Bing.

(r) Roots v. Lord Dormer, 4 B. &

Ad. 77. See Emmerson v. Heelis, 2
Taunt. 38; ante, 238.

(s) 3 D. & R. 220; 2 B. & C. 37,

S. C.

marked others; and he desired that an account of the whole might be sent to him. A bill of parcels was accordingly sent with the goods; and A. on that occasion required a discount on the whole to be allowed him for ready money, which was declined; and A. then refused to take any of the goods. It was decided that looking to the whole transaction, there was an entire contract; and not a distinct or separate sale of each article. But where there was an absolute order of, and bargain for, one article; and at the same time an incomplete order, (reserving an option of sale,) as to another article, it was decided that the orders were distinct, not joint (t).

Sale by a wrongful Possessor (u):-The general rule of the law of England is, that a man who has no authority to sell, cannot, by making a sale, transfer the property to another. If the real owner of goods suffer another to have possession of his property, and of those documents, which are the indiciâ of property, then, perhaps, a sale by such a person would bind the true owner (x). The late important statute of 6 G. 4, c. 94, relative to the sale of goods by a factor or agent, has been already noticed.

There is an exception to the principle that the sale of goods by a tortious holder of them shall not transfer any legal title thereto, in the case of a sale in market overt. This is an exception originating in the manifest injustice and impolicy of permitting sales of a public description to be impeached by a party who could not, by due diligence, be discovered.

Market overt, or open market, is a fair or market held at stated intervals, in particular places, by virtue of a charter or prescription. In the city of London (y), every shop, (but not a wharf,) is, (on every day except Sunday,) market overt, in regard to the goods usually and publicly sold therein. But, in all these cases, the sale must be in the usual and public or exposed part of the premises where the goods are placed for sale, not in a back room;

(t) Price v. Lea, 1 B. & C. 156.

(u) We have already fully considered the capacity of parties to contract, and the law of contracts as it regards particular parties. It only remains to treat here of sales by parties who have no title to the goods. The general law, as to capacity to contract, applies as well to sales as to other bargains.

(x) Dyer v. Pearson, 3 B. & C. 42; per Abbott, C. J.; 4 D. & R. 652, S. C.; Boyson v. Coles, 6 M. & Selw. 23, 24, per Bayley, J.; Williams v. Barton, 3 Bing. 145, per Best, C. J. When an authority to sell shall be presumed against the owner, see ante, 172.

(y) Semble not the Strand; Anon. 12 Mod. R. 521.

and no place is for this purpose a market overt, except as to goods usually sold therein, and appropriate to the trade of the occupier. And the exception applies only to boná fide sales commenced and perfected in the market overt, not to gifts or pawns therein (~).

By the 7 & 8 G. 4, c. 29, s. 57 (a), the owner of any chattel, &c., or other property, stolen, is entitled to restitution, (although the chattel may have been bonâ fide sold in the interim,) provided the owner, or his executor, shall prosecute the thief or receiver to conviction, and the Court shall award restitution. There is an exception, if it appear before the award of restitution, that any valuable security shall have been bonâ fide paid or discharged by the party liable; and in the case of a negociable instrument boná fide taken by transfer, or delivery, by any person for a valuable consideration, without any notice, or without any reasonable cause to suspect, that the same had been stolen.

The right to follow goods sold, &c., by a person who obtained them by fraud, will be considered hereafter.

2ndly. OF THE STATUTE OF FRAUDS, AS IT AFFECTS CONTRACTS FOR THE SALE OF GOODS.

By the common law, a parol contract for the sale of goods is valid. But, by the 17th section of the Statute of Frauds, 29 Car. 2, c. 3, it is enacted, that no contract for the sale of any goods, wares, and merchandizes (b), for the price of 107. sterling,

(z) 2 Inst. 713. Case of Market Overt, 5 Co. R. 836; 2 Roll. Ab. tit. Market Overt.; Bac. Ab. Fairs, (E); 2 Bla. C. 449; Wilkinson v. King, 2 Camp. 335; see ante, 304, note (x).

(a) As to the sale of stolen horses, see 2 and 3 P. & M. c. 7; 31 Eliz. c. 12; 2 Bla. C. 450; Gibbs's Case, Owen, 27; 1 Leon. 158.

(b) The statute has not the word chattels. Clearly, however, it extends to contracts for the sale of horses, and other live animals; see post 309. The word goods is evidently used in contradistinction to realty. But it would seem that this section of the statute can relate only to such chattels or personalty, as are capable of delivery. Query whether it extends to a contract to sell or transfer shares or stock in a

company. In Pickering v. Appleby, 1 Comyn R. 354; 2 Eq. Cas. Ab. 50, pl. 27, S. C., the question was before all the judges of England, who were equally divided upon it, six against six; see per Lord Chancellor, Colt v. Neterville, 2 P. Wms. 308; Crull v. Dodson, Select Cases in Chan. 41; Vin. Ab. Contracts, (H) pl. 46. In Leigh v. Banner, 1 Esp. R. 403, an agreement between merchants that one shall take a share in the outfit of a ship and the adventure, was held by Lord Kenyon not to be an agreement "for the sale of goods," within the proviso in the stamp act. Semble that an agreement for a partnership need not be in writing. As to contracts for fixtures, ante, 283; Wick v. Hodgson, 12 Moor, 213.