A sale, as distinguished from an executory contract to sell, only takes place when the agreement to transfer the property rights in the goods is concluded. It is true that delivery is not essential to pass the title as between the parties themselves, but that the title passes as soon as the bargain is struck, without regard to delivery, or payment of the sale price, unless the contract by the terms states that the title is not to pass until delivery and payment is made. The executory contract is simply an agreement to transfer the title to the goods, the property right in the goods remaining in the seller until this agreement is concluded by the sale. The importance of the distinction rests in determining who shall bear the loss of the property, where it is destroyed, where the goods are either the subject matter of the sale, or agreement to sell, and also in determining the rights of creditors of either party to the goods in question, when it is a question whether a sale of the goods has actually taken place, or whether the goods are merely the subject of an agreement to sell.

The Illinois Court in stating the legal meaning to be attached to the term bargain and sale, as distinguished from an agreement to sell states the principle as follows: "The words bargained and sold have a settled legal meaning and import a sale, which vests the property in the buyer." 1 And they quote in that case, from the rule of the common law as stated in Noys Maxims, C. 42: "If I sell my horse for money, I may keep him until I am paid, but I cannot have an action in debt until he is delivered; yet the property of the horse is by the bargain, in the bargainer or buyer. But if he do presently tender me the money, and I refuse it, he may take the horse and have an action for detainment; and if the horse die in my stables, between the bargain and delivery, I may have an action of debt for my money, because by the bargain, the property was in the buyer." The rule as stated in Cowen's Treatise, 2nd ed., part 1, p. 50, is also quoted: "By a regular sale, even without delivery, the property is absolutely vested in the vendee, that if it afterward dies or is destroyed in the vendor's custody, without his fault, still he is entitled to the price, because, by the contract, the property is in the vendee . and the vendor is considered a bailee or trustee for the vendee . . . and would be responsible only for ordinary neglect."

1 Barrow vs. Wendow, 71 Ill., 214.