It is not always possible in the case of bulky goods, or goods at a distance, for the seller to transfer possession of the goods themselves immediately and, under the Statute of Frauds as well as in other branches of the law of sales, where delivery is impossible, the delivery of the symbol has in some cases been recognized as sufficient. The typical case always given is the delivery of a key of a room, or building, in which the goods are stored.3 Likewise where iron was lying in a separate delivery of the document to the buyer. But if the document is not in this form, the goods are in the possession of a bailee who, until he attorns to the buyer, is an agent for the seller, and his possession is the seller's possession.9 If, however, a document of title is negotiable or quasi-negotiable there seems no reason to doubt that the indorsement and delivery of the document may be a receipt of the goods. The meaning of such negotiability, primarily, is: That the obligor, that is, the bailee, is directly bound by contract to the assignee of the document immediately upon its assignment - no attornment being necessary. He is, therefore, agent of the buyer as soon as the buyer becomes the indorsee of the document.10
1 Kelly v. Brooks, 25 Ala. 523.
2Dodsley v. Varley, 12 A. & E. 632. In this case the goods after the purchase were deposited on the prem-iees of a third person, an agreement being made that they should not be removed by the buyer until paid for. The buyer exercised various rights of ownership over the goods where they were stored and the court held there was actual receipt, saying: "We think that, upon this evidence, the place to which the wools were removed must be considered as the defendant's warehouse, and that he was in actual possession of it there as soon as it was weighed and packed; that it was thenceforward at his risk, and if burned must have been paid for by him. Consistently with this, however, the plaintiff had not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownership, independent of the actual possession, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the goods should not be removed to their ultimate place of destination before payment. But this lien is consistent, as we have stated, with the possession having passed to the buyer, so that there may have been a delivery to and actual receipt by him. This, we think, is the proper conclusion upon the present evidence; and there will be no rule."
3Atwell v. Miller, 6 Md. 10, 61 Am. Dec. 204; Shindler v. Houston, 1 N. Y. 261, 40 Am. Dec. 316; Gray v. Davis, 10 N. Y. 285. See also Vin-ing v. Gilbreth, 39 Me. 490; Packard p. Dunamore, 11 Cush. 282; Wilkes p. Ferris, 5 Johns. 335,4 Am. Dec. 364; Barr v. Reitt, 53 Pa. St. 256. In the cases last cited the question of delivmass and the seller said, "I deliver this iron to you." 4 Similar words in regard to logs floating in a stream are sufficient.5 So where cattle are running on a range, branding them and turning them loose again is sufficient.6 A growing crop has also been held capable of such a transfer of possession as to satisfy the statute.7 In these cases it will be observed that though the goods themselves are pot changed from the position which they occupied before the bargain, that position is one which puts the goods as fully in the actual physical control of the buyer as of any other person; but cases may be supposed where this is not true. For instance, where goods are at sea no actual delivery is possible, but the goods are in the possession of the captain of the vessel, who for this purpose is the agent of the seller. It may be doubted whether in such a case there can be actual receipt of the goods by the buyer without a negotiable bill of lading, although there are doubtless decisions holding that there is a delivery so far as to satisfy common-law requisites of delivery between buyer and seller, or even so far as to bind creditors of the seller.