to goods under the value of £10, no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing and signed by the party, or his agent, who is to be charged therewith. Anciently, among all the northern nations, shaking of hands was held necessary to bind a bargain; a custom which we still retain in many verbal contracts. A sale thus made was called hand sale,"venditio per mutuam Handsel. manuum complexionem," till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof. As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee can not take the goods until he tenders the price agreed on. But, if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A. sells a horse to B. for £10, and B. pays him earnest, or signs a note in writing of the bargain, and afterward, before the delivery of the horse or money paid, the horse dies in the vendor's custody, still he is entitled to the money, because by the contract the property was in the vendee.b [449 ̧ Thus may property in goods be transferred by sale, where the vendor hath such property in himself.1 z Stiernhook, De Jure Goth., 1. 2, c. 5. en in determining what acts between the parties amount to a delivery on the one part and acceptance on the other. An actual delivery by the seller, and acceptance by the buyer, is not necessary in all cases; as, where the goods are ponderous, delivery of the key of the ware-house in which they are deposited, or by delivery of other tokens of property, is sufficient. (1 Atk., 170; 1 East, 194.) Or payment of ware-house rent by the purchaser. (1 Camp., 452.) Where goods are sold by sample, delivery of the sample to the purchaser may be part delivery within the statute (5 Esp., 267; 7 East, 564); but it is otherwise if the sample be not part of the bulk. (7 T. R., 14; Holt, 179.) Delivery of an order by the seller, to a wharfinger or ware-house-man who has the custody of the goods, to deliver them to the vendee, is sufficient to satisfy the statute. (2 Esp., 598.) So, if a purchaser write his name or initials upon the article bought, it will suffice; but other articles bought at the same time will not pass, unless the signature is put upon them also. (1 Camp., 233, 235, n.) But where the defendant agreed to pur chase a horse for ready money, and to (18) A gift or grant, or declaration of Sale by one who is not the owner. But the property may also in some cases be transferred by sale, though the vendor hath none at all in the goods;" for it is & St., 607; 1 Myl. & K., 506; 3 Myl. & Cr., 673.) When the assignment is made by deed, which is called a bill of sale, it passes the property without consideration, and without delivery of possession; the want of either of which may, however, by evincing fraud, occasion the assignment to be avoided on that ground. (2 B. & Al., 551; 1 Cr., M. & R., 782; i Hare, 557.) When the transfer is not made by deed, but by words, either spoken or written, and not sealed (it is immaterial which, unless in cases where writing is made essential by some statute, as by the Statute of Frauds, ante, p. 306, n.; by the Ship Registry Act, 3 & 4 Will. IV., c. 55; by the Annuity Act, 53 Geo. III., c. 141; by the Copyright Acts, as interpreted by the courts (2 B. & Cr., 861), &c.), delivery of possession passes the property, whether a consideration moves from the other party or not (subject always to inquiry as to the bonâ fides of the transaction); but when delivery does not accompany the contract, a consideration is necessary (2 B. & Al., 551); and it will then depend upon circumstances whether the property in the goods passes at once to the vendee or not. The right of property may pass immediately, and the right of immediate possession may not pass. If the right of possession passes at once, without any condition precedent to be performed by the vendee, he may recover the goods in trover, as, in case there is a condition precedent, he may do after performance, or tender of performance, of the condition. But although the right of possession does not immediately pass, yet, if the right of property passes, any subsequent loss or damage of the goods will fall upon the vendee. The fact that the goods are not to be paid for until a future time, nor to be delivered until paid for, does not prevent the property from immediately passing. The rule is, that where there is an immediate sale, and nothing remains to be done by the vendor as between him and the vendee (see 7 East, 570), the property in the thing sold vests in the vendee. (6 B. & Cr., 364; 5 B. & Ad., 340.) Thus, where it was agreed that the price should be paid by a bill at two months from the date of (19) It was formerly thought that the property in goods to be acquired or created at a future time could not be bound by contract, but the contrary is now set landing the goods, and the goods were lost at sea, it was held that the vendor could recover the price. (1 Scott, 281, 630.) If a verbal order for goods above the value of £10 is given, the property does not pass until the goods are accepted by the buyer; and, therefore, in cases of loss during the carriage, the vendor is the party to sue the carrier, at any rate where the latter was not named by the consignee. (2 Gale & D., 552; see 6 Cl. & Fin., 600.) When the contract is for a present sale, and earnest is given by payment of part of the price, or delivery of part of the goods, both parties are bound, and the property is changed, but subject to a right in either party to rescind the contract, if the other unreasonably delays to perform his part, and thereby again to change the property in the goods. After earnest given, the vendor can not sell the goods to another without a default in the vendee; and, therefore, if the vendee do not come and pay for and take away the goods, the vendor ought to go and request him; and then, if he do not come and pay for the goods in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person. (Salk., 113; Noy, 88; 7 East, 570: 5 Mee. & W., 538; but see 1 Gale & D., 5.) If any thing remain to be done on the part of the seller, as between him and the buyer, before the thing purchased is to be delivered, the property does not pass. (6 East, 625; 2 Mau. & S., 397.) This may be where something is to be done to the goods by the vendor to fit them for delivery (see 4 Ad. & E., 466; 2 M. & W., 802; 4 Scott, N. R., 471); or where the identity of the goods is not yet ascertained by selecting or weighing them from a larger quantity; or where the price is not ascertained, but is to be determined by weighing the goods, &c. (6 B. & Cr., 392; 2 Or. & Phill., 530; 5 B. & Ad., 340; 9 Ad. & E., 900; 4 Mee. & W., 698.) As the property may pass while the goods remain in possession of the vendor, so it may pass while they remain in the hands of a third person. "If the inten tion of the parties to pass the property, whether absolute or special, in certain ascertained chattels, is established, and tled both at law and in equity. (5 M. & W., 462; 1 Hare, 556; 1 Myl. & K., 488.) expedient that the buyer, by taking proper precautions, may, at all events, be secure of his purchase, otherwise all commerce they are placed in the hands of a depos- against a bona fide assignee for value, itary, no matter whether such deposita- without notice of the insolvency, &c., ry be a common carrier or ship-master, who has taken the bill of lading. (5 T. employed by the consignor or a third R., 683; 9 East, 506; 8 M. & W., 431; person, and the chattels are so placed see 3 Camp., 92.) on account of the person who is to have that property, and the depositary assents, is enough; nor is it material whether the person who is to have the property be a factor or not, for such an agreement may be made with a factor as well as any other individual." (4 Mee. & W., 791.) As to constructive delivery by deliv. ery orders, dock warrants, &c., see 1 J. B. Moore; 2 B. & Cr., 540; 3 Id., 423; 2 Esp., 598; 2 Car. & P., 86; 3 Moo. & Sc., 732; 4 Ad. & El., 58. Where by special agreement the delivery is to precede the payment of the price, the vendor as no lien for the price, unless, perhaps, where the goods happen to remain in his hands until the time of credit has expired (1 Gale & D., 1); or unless the vendor becomes insolv ent or bankrupt. (4 B. & Cr., 948; 5 B. & Ad., 341; see 8 Mee. & W., 321.) Where there is no agreement for credit, the vendor has a lien upon the goods for the price, so long as they remain actually or constructively in his possession. But an actual or constructive delivery, by delivering the goods to an agent for the vendee appointed by him, by giving up the key of the ware-house containing the goods, or by giving a delivery order to the wharfinger or ware-house-keeper, to which he assents, or by delivering part of the goods, without any intention of separating that part from the rest, may put an end to this lien. (Smith, Comp. Mercant. Law, 461; 2 Scott, 441; 4 Ad. & E., 58; 12 Id., 632.) When goods are shipped for transport by sea (see 4 Mee. & W., 781, 790), the master signs a bill of lading (see 4 Scott, N. R., 43), by which, according to its ordinary form, he undertakes to deliver the goods to the consignee named therein, or his assigns, he or they paying freight, &c. Sometimes a blank is left for the name of the consignee. Several copies or parts of this bill are made, each of which concludes thus: "In witness whereof, I, the said master of the said ship, have affirmed to three bills of lading of this tenor or date, one of which bills being accomplished, the other two are to be void." The three copies of the bill are delivered to the shipper, who usually keeps one of them, and transmits the others to the consignee, one by the ship itself, and one by the post. The bill of lading is not, however, final or irrevocable; in the absence of any special circumstances, and when The vendor may lose his lien, and yet goods are sent by a general ship, the retain his right to stop the goods in tranconsignor may change his purpose, at situ, by notice to the carrier (7 Taunt., any rate before the delivery of the goods 169; 9 Mee. & W., 518), whether such themselves, or of the bill of lading, to carrier is appointed by the vendor or the party named in it; and may, by in- vendee (7 T. R., 440; 7 Scott, 577; see dorsement or otherwise, order the de- 6 Cl. & Fin., 600), and notwithstanding livery to be made to some other person a previous sale by the consignee to a (11 Ad. & E., 903). The bill of lading third person, unless, in certain cases, is transferable by blank or special in- such sub-sale is accompanied by the bill dorsement, and passes the right of prop- of lading, delivery order, or other legal erty in the goods to any holder who has document, evincing title to the possespurchased the bill for good considera- sion. (5 B. & Ad., 339.) "When goods tion, and bona fide, though from a mere are sold, and nothing is said as to the factor, broker, or agent of the consignor. time of delivery or the time of payment, The possession of the bill of lading is and every thing the seller has to do with now made prima facie evidence of ab- them is complete, the property vests in solute ownership, so that even a pledge the buyer, so as to subject him to the of the goods by a factor, who holds the risk of any accident which may happen bill of lading, is in general binding on to the goods, and the seller is liable to his principal. (Stats. 6 Geo. IV., c. 94; 5 & 6 Vict., c. 39; see 5 Scott, N. R., 1.) The consignor has a right to stop the goods in transitu upon the insolvency or bankruptcy of the consignee, and upon other grounds, notwithstanding part payment of the price; but he can not do so deliver them whenever they are demanded, upon payment of the price; but the buyer has no right to the possession of the goods till he pays the price. The buyer's right, in respect of the price, is not a mere lien which he will forfeit if he parts with the possession, but grows Market overt. Sale in market overt. between man and man must soon be at an end. And, therefore, the general rule of law is, that all sales and contracts of any thing vendible, in fairs or markets overt (that is, open), shall not only be good between the parties, but also be binding on all c 2 Inst., 713. out of his original ownership and domin- to support it." (Per Bayley, J.; 4 B. & ion, and payment or a tender of the price Cr., 948; see 10 Mee. & W., 436.) The is a condition precedent on the buyer's criteria of insolvency, for the purpose of part, and until he makes such payment founding a right to stop in transitu, are or tender he has no right to the posses- not well settled. Mr. Smith thus states sion. If goods are sold upon credit, and the result of the case: "It is remarked nothing is agreed upon as to the time of that the term insolvency (when used with delivering the goods, the vendee is im- reference to this branch of the law) is mediately entitled to the possession, and satisfied by general inability to pay, evithe right of possession and the right of denced by stoppage of payment. It may property vest at once in him; but his be conjectured, from the judgment in right of possession is not absolute; it is Wilmshurst v. Bowker (2 M. & Gr., 812; liable to be defeated if he becomes in- 3 Scott, N. R., 272), that whenever a solvent before he obtains possession. (5 particular mode of payment has been T. R., 215.) Whether default in pay- stipulated for by the contract, which ment, when the credit expires, will de- would in its nature precede the delivery stroy his right of possession, if he has of the goods, a default to comply with not before that time obtained actual pos- such stipulation entitles the vendor to session, and put him in the same situa- withdraw the possession of the goods tion as if there had been no bargain for from the carrier, though the property credit, it is not now necessary to inquire, may have vested. This might, of course, because this is a case of insolvency; and happen without even a stoppage of payin case of insolvency the point seems to ment on the part of the vendees." (Combe perfectly clear. (6 East, 614.) If pend. Merc. Law, p. 501, n.) the seller has dispatched the goods to the buyer, and insolvency occurs, he has a right, in virtue of his original ownership, to stop them in transitu. (1 H. Bl., 357; 3 T. R., 464; 7 Id., 440; 1 East, 515; 3 Id., 381.) Why? Because the property is vested in the buyer so as to subject him to the risk of any accident, but he has not an indefeasible right to the possession, and his insolvency, without payment of the price, defeats that right; and if this be the case after he has dispatched the goods, and while they are in transitu, à fortiori is it when he has never parted with the goods, and when no transitus has begun. The buyer, or those who stand in his place, may still obtain the right of possession, if they will pay or tender the price, or they may still act upon their right of property, if any thing unwarrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of that injury; but they can maintain no action in which right of property and right of possession are both requisite, unless they have both ⚫ those rights. (7 T. R., 9.) Trover is an action of that description; it requires right of property and right of possession The vendor's right to stop in transita ceases, of course, with the transit, which continues until the goods have reached the destination originally contemplated by the purchaser, unless they have in the mean time come into his actual or constructive possession. If before their arrival he take them out of the carrier's possession, with or without consent, the transit is at an end, although, in the lat ter case, the carrier might have an action for the wrong. A case of construct ive possession is, where the carrier enters expressly, or by implication, into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination pursu ant to that contract, but in a new character, for the purpose of custody on his account, and subject to some new or further order to be given by him. (9 M. & W., 534; 2 Id., 622; 8 Id., 431; 10 Id., 436; 5 B. & Ad., 341; 2 Ad. & E., 73; 5 Scott, N. R., 821.) The right to stop in transitu can not be exercised against a bona fide purchaser for value of the bill of lading, dock warrant, or other negotiable document of title to the possession of the goods. (See 5 B. & Al., 817; and the Factors' Acts, 6 Geo. IV., c. 94, and 5 & 6 Vict., c 39.) those that have any right of property therein.* And for this purpose, the Mirror informs us,d were tolls established in markets, viz., to testify the making of contracts; for every private contract was discountenanced by law, insomuch that our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses. Market overt in the country is only held on the special days provided for particular towns, by charter or prescription; but in London every day, except Sunday, is market-day. The market-place, or spot of ground set apart by custom for the sale. of particular goods, is also, in the country, the only market overt; but in London every shop in which goods are exposed publicly to sale is market overt, for such things only as the owner professes to trade in.h20 But if my goods are stolen from me, and sold out of market overt, my property is not altered, and I may take them wherever I find them. And it is expressly provided by statute 1 Jac. I., c. 21, that the sale of any goods wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property; for this, being usually a clandestine trade, is therefore made an exception to the general rule. And even in market overt, if the goods be the property of the king, such sale (though regular in all other respects) will in no case bind him, though it binds in- [450] fants, feme-coverts, idiots, or lunatics, and men beyond sea or in prison; or if the goods be stolen from a common person, and then taken by the king's officer from the felon, and sold in open market, still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods. So, likewise, if the buyer knoweth the property not i22 (20) But the sale must be such a sale as the custom of London authorizes; and, therefore, a sale of stolen goods to a shopkeeper in London, who is not a freeman, is not sufficient to bar the true owner's title. (See Cro. Jac., 68; 3 Per. & D., 178.) And the sale must be of such goods as the keeper of the shop professes to deal in. (Com. Dig., Market, (E.); 5 Rep., 83; 11 Ad. & E., 326.) (21) See 5 T. R., 175. Godb., 131. h 5 Rep., 83. 12 Mod., 521. (22) This subject is now regulated by the stat. 7 & 8 Geo. IV., c. 29, 8. 57, which extends the provisions of the 21 Hen. VIII., c. 11, to certain takings, which, not being felonies, amount to misdemeanors, and gives the owner, who has prosecuted the offender to conviction, a right to restitution, notwithstanding (as it seems) a sale in market overt.t But the owner of goods stolen, who has prosecuted the thief to conviction, can not recover the value of his The law of markets overt has not been adopted in this country.-(2 Kent's Comm., 324; 1 Johns. R., 481; 8 Cowen, 238; 22 Wendell, 292.) The magistrate who takes the examination of a person accused of larceny, and upon whom stolen property is found, may direct such property to be delivered to the owner, upon receiving satisfactory proof of title; so, if it has not been previously restored to the owner, the court before whom the conviction is had may order its restoration.-(2 R. S., 746, § 31, et seq.) |