§ 1016. We come now to the question, what constitutes a sufficient technical delivery of the goods, so as to vest the right of property in the vendee. Delivery completes the contract of sale,1 and vests the title to the property sold in the vendee;2 so that, if they be destroyed afterwards by any casualty, he must bear the loss.3 Delivery is as essential to a gift of personal property as to a sale; and it has been held that a verbal gift to one in possession does not pass the property.4 But this has been doubted.6
1 See Hotchkiss v. Hunt, 49 Me. 213 (1860); Sawyer v. Nichols, 40 Me 212.
2 And if duly delivered, it does not seem to be essential that the purchaser should see the property. Hyde v. Lathrop, 3 Keyes, 597 (1867); Rice v. Codman, 1 Allen, 377. If a bond fide purchase of personal property has been made, and the price paid, slight acts are sufficient to show a delivery that will avail the buyer against the claims of third persons. Stinson v. Clark, 6 Allen, 340 (1863). See Hardy v. Potter, 10 Gray, 89 (1857).
3 And where goods have been sold and delivered, the sale is so far completed that the vendor cannot hold the vendee to terms not agreed on, by sending him a bill or memorandum of sale, with such terms set out upon it as that "no claims for deficiencies or imperfections will be allowed, unless made within seven days from the receipt of goods." Schuchardt v. Aliens, 1 Wall. 359 (1863).
4 Irons v. Smallpiece, 2 B. & Ald. 551; Shower v. Pilck, 4 Exch. 478; Withers v. Weaver, 10 Barr, 391.
5 Ward v. Audland, 16 M. & W. 862, 870; Winter v. Winter, 4 Law Times (n. s.), 639. In this case Crompton, J., said: "Although Irons v. Smallpiece and Shower v. Pilck bave not been overruled, the subsequent cases, to speak familiarly, have hit them hard." But see Douglas v. Douglas, 22 Law Times (n. s.), 127, 129 (1869); Hanson v. Millett, 55 Me. 184 (1867). See, also, Allen v. Cowan, 23 N. Y. 502 (1861).
§ 1017. The first rule of law applicable to delivery, and to which all other rules are subordinate, is, that no sale is complete, so as to vest an immediate right of property in the buyer, so long as any thing remains to be done, as between the buyer and seller.1 The goods sold must be identified, separated, and distinguished from all other goods, or from the bulk and mass with which they are mixed.2 Where goods are sold by number, weight, and measure, so long as the specific quantity or measure is not separated and identified, the sale is not completed, and the goods are at the risk of the seller.3 And a purchaser of a part of a lot of goods of the same mark acquires no property in any part, until there has been some appropriation or designation of his part, by the vendor or his agent, and assented to by the purchaser or his agent.4 A mere assumption of ownership or control by the purchaser will not, however, be sufficient evidence of a delivery.5 It merely affords a presumption of delivery, which may be rebutted by evidence of the refusal of the vendor to part with the goods until payment; which refusal may be either expressed, or implied from the terms of the bargain1 or the previous course of dealing between the parties.2
Bromley v. Brunton, Law R. 6 Eq. 275 (1868); Morgan v. Malleson, Law R. 10 Eq. 475 (1870); Power v. Cook, Irish R. 4 C. L. 247 (1869).
1 See Evans v. Harris, 19 Barb. 416; Bailey v. Smith, 43 N. H. 141.
2 Austen v. Craven, 4 Taunt. 644; White v. Wilks, 5 lb. 176; Out-water v. Dodge, 7 Cow. 85; Woods v. McGee, 7 Ohio, pt. 2, 128; Riddle v. Varnum, 20 Pick. 280; Hutchinson v. Hunter, 7 Barr, 140. As to a sale of cattle roaming over the plains with cattle of other owners, see Walden v. Murdock, 23 Cal. 540. A sale of lumber to be taken and measured from a larger bulk, and to be an average lot as to thickness and quality, is not complete, even as between the parties, until selected and measured. Ockington v. Richey, 41 N. H. 275 (1860).
3 Whitehouse v. Frost, 12 East, 614; Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 210; White v. Wilks, 5 Taunt. 176; Zagury v. Furnell, 2 Camp. 240; Shepley v. Davis, 5 Taunt. 617; Busk v. Davis, 2 M. & S. 397; 5 Taunt. 622; Simmons v. Swift, 5 B. & C. 857; Elmore v. Stone, 1 Taunt. 458; Howe v. Palmer, 3 B. & Ald. 321; Withers v. Lyss, 4 Camp. 237; Macomber v. Parker, 13 Pick. 182; Barnard v. Poor, 21 Pick. 378; Warren v. Buckminster, 4 Foster, 342; Gil-man v. Hill, 36 N. H. 311 (1858); Banchor v. Warren, 33 N. H. 183 (1856); Frost v. Woodruff, 54 I11. 155 (1870).
4 Campbell v. Mersey Docks, 14 C. B. (N. S.) 412 (1863); Godts v. Rose, 17 C. B. 229. And see White v. Welsh, 2 Wright, 396.
5 Tempest v. Fitzgerald, 3 B. & Ald. 680, affirmed in Holmes v. Hos-kins, 9 Exch. 853; 28 Eng. Law & Eq. 566; Carter v. Toussaint, 5 B. & Ald. 855; Law Mag. vol. iv. p. 363, art. Mercantile Law; Dole v. Stimpson, 21 Pick. 384.
§ 1018. But where the sale is completed, and the goods sold are separated from all others, and marked, and there remains nothing more for the seller to do in relation to them, the contract of sale becomes absolute, and no further delivery is required in order to pass the property.3 Or as has been recently stated, by the law of England, by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties.4 So, also, where property sold is in the hands of a third person, and he agrees, at the instance of the vendor, to hold it in behalf of the vendee, the possession is changed, and no other delivery is necessary to throw the burden of loss on the vendee.5 And if, in such case, the vendor give notice to the vendee that the goods are at his disposal, the bailee becomes the bailee of the vendee; and it is not necessary that a delivery order should be given.1 Thus if, in pursuance of an executory contract of sale, the owners of merchandise send a quantity of it to the place named for the delivery, and notify the purchaser thereof, and furnish him with an order entitling him to obtain it of the carrier, and receive pay therefor this is sufficient to vest the title in the purchaser.2