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alteration of ownership, the sale is imperfect and incomplete. A transfer to the purchaser of the right of property in the thing sold, is naturally accompanied by a transfer of the risk of loss, so that, if, between the time of the making of the bargain and the delivery, the thing sold is consumed or destroyed, without any neglect or want of care for its preservation on the part of the vendor, the loss is the loss of the purchaser, and he may be compelled, as we shall presently see, to pay the price, although he can never have the thing for which he agreed to pay it. (r) To constitute a perfect and complete sale, the precise thing sold must be ascertained and identified, except where the sale is of shares and undivided quantities expressly sold as such, and the price must be ascertained and fixed. Personal engagements may subsist between the parties; but there can be no transfer of ownership and risk, until such ascertainment and identification have been accomplished.'

566. Imperfect sales of unascertained chattels.— 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 fulfill 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

(r) Post. As to loss of goods by see Greaves v. Hepke, 2 B. & Ald. distress for rent after sale of them, 133.

The risk of loss is in the purchaser, in an actual sale, while in an agreement to sell, the risk remains in the yendor; Benjamin on Sales, 1st Am. Ed. §§ 78, 314, 315; the risk of property follows the title; Taylor v. Lapham, 13 Allen, 26; Willis v. Willis, 6 Dana, 49; Joyce v. Adams, 4 Selden, 296; Terry v. Wheeler, 25 N. Y. 324.


any particular lot of goods more than another, until it is ascertained which are the very goods sold. (s) Thus," observes Pothier, "in the sale of things which consist in quantity and which are sold by weight, number, or measure, as if one should sell fifty quarters of corn out of a larger bulk in a granary, ten thousand weight of sugar, a hundred carp, &c., the sale is not perfect (so as to vest any right of property in the purchaser) so long as the wheat has not been measured, the sugar weighed, and the fish counted; for up to that time nondum apparet quid venierit. It does not sufficiently appear which is the wheat, which the sugar, and which the fish that constitute the object of the sale. . . . The sale is of an unascertained subject, and one which can not be ascertained but by the measuring, the weighing, or the counting. It is not, therefore, until these have been accomplished, that the thing sold remains at the risk of the buyer; for risk can only attach on an ascertained subject." (t) '

Although the vendor has given a delivery order, or a dock-warrant, to a warehouse-keeper, wharfinger, or bailee, having the custody of the goods, commanding him to deliver them to the purchaser, yet, so long as the precise quantity of goods to be delivered under the order has not been identified and ascertained, and separated from the mass of the commodity in bulk, the sale is not perfect and complete, and the right of property is not altered. Thus, where a vendor, hav

(s) Blackburn on the Contracts of Sale, 122. White v. Wilks, 5 Taunt. 178. Logan v. Le Mesurier, 6 Moo. P. C. 116; 11 Jur. 1091. Heseltine v. Siggers, 1 Exch. 861. Hale v.

Rawson, 27 L. J., C. P. 191; 4 C. B.,
N. S. 85.

(t) Pothier, Contrat de Vente, No. 179.

'See ante, note 2, paragraph 564.

ing eighteen tons of Riga flax in mats lying at a wharf, sold ten tons thereof to a purchaser, and gave him a delivery order on the wharfinger for ten tons, which order was accepted by the latter, and entered in his books, it was held that the ownership was not altered, nor the right of property transferred from the vendor to the purchaser, until the flax had been weighed, and the precise quantity to be delivered under the order had been separated from the bulk and put into a deliverable state, and placed at the disposal of the purchaser. (u) 1 If, however, the bulk of the commodity has been identified, and the sale is a sale of an undivided quantity thereof, expressly sold as such at an ascertained price, the ownership of the share and the risk of the loss of the subject-matter thereof will pass to the purchaser, although the shares have not been separated and divided. (x) 2


(u) Busk v. Davis, 2 M. & S. 403. Shepley v. Davis, 5 Taunt. 617.

Moakes v. Nicholson, 34 L. J., C. P.,
(x) Post.

'Until identification or "appropriation," the contract is merely executory, and the property does not pass; Browning v. Hamilton, 42 Ala. 484; so the sale of a certain number out of a large lot of barrels of pork, stored in a cellar; Scudder v. Worster, 11 Cush. 593; Warren v. Buckminster, 24 N. H. 336; but to the contrary, see Chapman v. Shepard, 39 Conn. 413; Pleasants v. Pendleton, 6 Rand. (Va.) 473; Waldron v. Chase, 37 Me. 414; Cushing v. Breed, 4 Allen, 380; Warren v. Millikin, 57 Me. 97; Hall v. Boston, &c. R. R. Co., 14 Allen, 439. The decisions in the various states are far from uniform on this subject. See Wood v. McGee, 7 Ohio, 466; Foot v. Marsh, 51 N. Y. 288; Redee v. Wade, 47 Barb. 63; Field v. Moore, Hill & D. 418; Ropes v. Lane, 9 Allen, 502; Golder v. Ogden, 15 Penn. St. 528; Waldo v. Belcher, 11 Ired. 609; Merrill v. Hunnewell, 13 Pick. 215; Gardner v. Dutch, 9 Mass. 427; Messer v. Woodman, 22 N. H. 172; Bailey v. Smith, 43 Id. 141; Hutchinson v. Hunter, 7 Barr, 140; Bell v. Farrar, 41 Ill. 400.

• Post, chapter 3.

567. Contracts for the sale and manufacture of goods.-Where any specific chattel is ordered to be made, the right of property is not vested in the party who gives the order, nor the right to the price in the vendor, until the thing ordered is completed and made ready for delivery, and has been approved of by the purchaser, or some person appointed on his behalf to inspect the materials and workmanship. The builder or maker is not bound to deliver to the purchaser the identical chattel which is in progress, although the purchase money may have been paid in advance, but may, if he pleases, dispose of it to some other person, and deliver to the purchaser another chattel, provided it answers to the specification or description contained in the contract. (y) But where the contract provides that the article shall be manufactured under the superintendence of a person appointed by the purchaser, and also fixes the payment by instalments regulated by particular stages in the progress of the work, the general property in the materials used, vests in the purchaser at the time when they are put together under the approval of the superintendent, or, at all events, when the first instalment is paid, subject to the right of the builder to retain the fabric, in order to complete it and earn the rest of the price; and the rights of the parties are then in the same state as if so much of the article as is then constructed had originally belonged to the purchaser, and had been builder to be added to and

(y) Atkinson v. Bell, 8 B. & C. 282; 2 M. & R. 301. Mucklow v. Mangles, I Taunt. 318. Laidler v. Burlinson, 2 M. & W. 615. Elliott v. Pybus, 4 M. & Sc. 389; 10 Bing. 512.

(s) Cl ke v. Spence, 4 Ad. & E

delivered by him to the finished. (~) And, when

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the article is completed and made ready for delivery, and has been approved of by the purchaser, the general property therein is transferred to the latter although the chattel may remain in the hands of the builder for the purpose of receiving some subsequent additions and improvements. (a)

There is a great analogy, it has been observed by the civilians, between this description of contract of sale, and the contract of letting and hiring of work and labor; and we are told in the Digest, and in the Institutes, how to discriminate between the one and the other. If, it is said, the materials for the work, as well as the work itself, have been furnished by the workman, then the contract is a contract of sale. If on the other hand, the employer has furnished the materials, and the undertaker of the work contributes his labor merely, the contract is a contract of the letting and hiring of labor. Thus, to quote an example from the Roman law, "If Titius should agree with a goldsmith for the making of a certain number of golden rings, of a specified size and weight, for ten aurei, the goldsmith to furnish both the gold and workmanship, the contract would be a contract of buying and selling. But if Titius should give his own gold, and agree to pay only for the workmanship, then the contract would be a contract of letting and hiring simply." (b) '

(a) Carruthers v. Payne, 2 Moo. & P. 441. Wilkins v. Bromhead, 7 Sc. N. R. 921.

(b) Dig. lib. 19, tit. 2, lex. 2. Instit. lib. 3, tit. 25. § 4, § I. Cod. lib, 4,

tit. 65. Lee v. Griffin, 1 B. & S. 272; 30 L. J., Q. B. 252. Atkinson v. Bell, 8 B. & C. 277. Grafton v. Armitage, 2 C. B. 341; 15 L. J., C. P. 20.

'Considerable apparent diversity exists in the rule as to articles to be manufactured, where work and labor is to be done as to materials to be found in the United States; Er-、 chelberger v. McCauley, 5 Harr. & J. 213; but it is believed

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