tween general contracts for the sale of chattels of a certain kind and contracts for the sale of chattels, specifically ascertained and identified.

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In the case at bar there should be no doubt upon the undisputed facts, that the title vested in the vendee at the date of the agreement. All the vendor's logs lying at a certain point the same being duly marked and scaled were included in the writing (all the items) were stated with particularity. In every respect it was a completed contract and the assent of both parties that the title should pass was obvious.

(The Court holds that as title had passed, the loss was upon the purchasers and the deferred installments must he paid.)

Question 314:

(1) State the facts, the question presented and Court's decision in the above case.

(2) At 9 o'clock on Sept. 5, A sold a carriage to B, giving B an order on the liveryman in whose possession it was. At 12 o'clock an execution issued against the goods of A, and by general law became a lien thereon. At 5 o'clock on the same day B came and took the carriage away. The constable now takes the buggy under the execution. B brings replevin against the constable. Can he recover? (Peterson v. Bostrom, 99 Ill. App. 210.)

§ 344. (Sales, Sec. 56.) Rules for ascertaining the intention of the parties: the second rule.

Case 315. Uniform Sales Act, Sec. 19, Rule 2.

"[Unless a different intention appears.] Where there is a contract to sell specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done."

Question 315: State the above rule.

Case 316. Hamilton v. Gordon, 22 Ore. 557.

Facts: Suit to recover certain wheat as the property of the plaintiffs. Gordon, the defendant, made a con

tract with Hamilton & Rourke, the plaintiffs, reading that Gordon "hereby sells and agrees to deliver to Hamilton & Rourke, in their warehouses or platform at Vansycle, Oregon, on or before October 1, 1891, all the grain harvested by me on land described below; wheat sacked in good merchantable sacks, the same being that certain crop now harvested or to be harvested, etc."

Point Involved: Whether under the agreement by which the seller was to harvest and sack grain, before delivery to the buyer, title passed before such harvesting and sacking was done.

*

BEAN, J., delivered the opinion of the Court: "* Whether an agreement concerning the sale and delivery of goods is to be treated as an executed or an executory contract, and whether the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded, or remains the property of the vendor until the contract is fully executed, is often a difficult and embarrassing question. As between the parties it is generally considered a question of intention. As a general rule where by the agreement the vendor is to do anything with the property for the purpose of putting it into deliverable condition or into that state which the purchaser is bound to accept it, the performance of these things in the absence. of circumstances showing a contrary intention is taken to be a condition precedent to the vesting of the property in the buyer.

in this case the grain was to be harvested and sacked 'in good merchantable sacks' by the vendor in order to put it in deliverable condition and by him conveyed to the warehouse or platform at Vansycle before plaintiffs were bound to accept or receive it or pay for the same.

"The contract is only a contract for the sale of a certain crop of grain; and if defendant has violated his agreement by delivering only a part of the grain and refusing to deliver the remainder, plaintiffs, if damaged,

have their remedy, but not by an action to recover possession of the property.

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Question 316: (1) State the facts, the question presented and the Court's decision in the above case.

(2) A had a quantity of wood which B agreed to purchase, A to chop the same into four-feet lengths. Before the wood was chopped, A's creditors seized it under a writ of execution. B claims the wood. Should he prevail? (Frost v. Woodruff, 54 Ill. 155.)

(Note: If the goods are specified, but weighing or measuring is to be done by the seller to ascertain the price, the goods being otherwise in a deliverable state, it is the rule in some states that title does not pass until such weighing or measuring be done. It is shown by Williston (Sales, Sections 267, 268, 269) that this "rule was originally founded on a mistake, has no principle behind it, and has already been abolished in some states in this country without the aid of legislation.")

§ 345. (Sales, Sec. 37.) Rules for ascertaining the intention of the parties; third rule.

Case 317. Uniform Sales Act, Sec. 19, Rule 3. "[Unless a different intention appears.]

"(1) When goods are delivered to the buyer on sale or return' or on other terms that have indicated an intention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest in the property in the seller by returning or tendering the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time.

"When goods are delivered to the buyer on approval or on trial or satisfaction, or other similar terms, the property therein passes to the buyer

"(a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction;

"(b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice

of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed on the expiration of a reasonable time. What is a reasonable time is a question of fact." Question 317: State when title passes, if at all, under paragraph 1 above; under paragraph 2.

Case 318. Foley v. Felrath, 98 Ala. 176.

Facts: Foley sued Felrath for $502.56 for goods sold. Foley was a manufacturer of gold pens in New York City. Being in Mobile, Alabama, he called on defendant and sold a bill of goods, with right in defendant to return some of the goods which he would select and return in exchange for others. The goods were lost in transit to Alabama by the Express Company. Plaintiff sues for the purchase price.

Point Involved: Whether the sale was on approval or sale and return, and accordingly on whom the loss was pursuant to return.

HARALSON, J.: In Allen, Bethune & Co. v. Maury & Co., supra [66 Ala. 17], we said: 'Where, however, goods are sold and delivered, the terms of sale being specified, and the vendee reserves the right to reject or return, the title passes, liable to be divested by the exercise of this option to rescind expressed within a reasonable time.' An option to purchase if the party to whom the goods are transferred should like is very different from an option to return the goods if he should not like them. (Held that risk of loss was

*

on purchaser.)

Question 318:

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(1) In the above case was title in the seller

or purchaser at the time of the loss?

(2) What is the difference between a "sale on approval" and a "sale and return"? What important consequence follows upon the distinction?

Case 319. Pence v. Carney, 78 Ark. 123.

A, a jeweler, of Hot Springs, sent two diamond rings to B "with the agreement and understanding that if she

was pleased with same she should keep them and account to the plaintiff at the above value, and if not pleased would, within a reasonable time return them to" A at Hot Springs. These rings being lost before returned to A, without fault of B, the question was upon whom, as owner, the loss must fall.

Point Involved: The distinction between a shipment on trial or satisfaction or approval and a sale and return.

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MCCULLOCH, J., delivered the opinion of the Court: Under the contract stated the title remained in the seller and any loss or damage sustained from any cause except negligence of the purchaser fell upon the seller. The distinction between the two classes of contracts is concisely stated by the Supreme Court of Massachusetts in Hunt v. Wyman (100 Mass. 198), as follows: 'An option to purchase if he likes is essentially different from an option to return if he should not like. In one case the title will not pass until the option is determined; in the other, the property passes at once, subject to the right to rescind and return'

Question 319: (1) Was the title in the seller or purchaser when the loss occurred?

(2) On whom was the loss? Why?

§ 346. (Sales, Sec. 59.) Rules for ascertaining the intention of the parties: fourth rule.

(See rule stated (Sales Act, Sec. 19 (4)) under next section, cases under this section and under § 347 grouped together.)

§ 347. (Sales, Sec. 60.) Rules for ascertaining the intention of the parties: fifth rule.

(Note: Cases under this section and section above grouped together.)

Case 320. Uniform Sales Act, Sec. 19, Rule 4. "Rule 4. (1) Where there is a contract to sell unascertained or future goods by description, and goods of