1 Tempest v. Fitzgerald, 3 B. & Al. 680; Goodall v. Skelton, 2 H. Bl. 316.
2 Holdernessv. Shackels, 8 B. & C. 612; Dan. & Lloyd, 203.
3 Wing v. Clark, 24 Me. 366; Houdlette v. Tallman, 14 Me. 400; Smith v. Nevitt, Walk. 370; Shindler v. Houston, 1 Denio, 48; 1 Comst. 281; Felton v. Fuller, 9 Foster, 121 (1854). On April 30,1868, the plaintiff negotiated with the defendant to sell him 170 barrels of mackerel at a specified price. On May 1st the defendant paid a part of the price, and the next day caused each barrel to be examined by a cooper, who refilled with pickle such as needed it. During the night of May 9th fifty barrels were stolen, and subsequently the remaining barrels were taken away by the defendant. It was held that the sale was complete, and that the loss of the mackerel stolen fell upon the vendee. Chase v. Willard, 57 Me. 157 (1869).
4 Gilmourv. Supple, 11 Moore, P. C. 551 (1858), explaining the cases. 5 Potter v. Washburn, 13 Vt. 558; post, § 1026. And of course a sale may be complete between the parties, although the vendor agrees to store the property for the vendee. Weld v. Came, 98 Mass. 152 (1867). And see Johnson v. Willey, 46 N. H. 75 (1865). So where A. delivered a chattel to B. under an agreement that it should belong to B., that B. need not pay for it until he sold it, and should then pay a certain price for it, and B. redelivered the chattel to A. for sale, it was held that, in the absence of fraud, the title had passed to B., even as against attaching creditors of A. Green v. Rowland, 16 Gray, 58 (1860).
§ 1019. Although the general rule is that while any act remains to be done by the vendor in relation to the articles which are the subject of sale, the property does not pass to the vendee, yet this rule only obtains in the absence of any agreement to the contrary between the parties. And as between the parties the sale may be so far complete as to pass the property, if such be their intention, although something remains to be done by the buyer, at his own expense, such as weighing or measuring the goods.3 And if the property sold be ready for delivery, and the payment of money, or the giving a security therefor, be not a condition precedent to the transfer, it may be the understanding of the parties that a present interest should pass. In such case, the interpretation of the contract depends upon their intention; and it is a question for a jury to determine, under the circumstances, whether an absolute transfer was intended, and whether the remaining acts of the vendor were merely done for the purpose of ascertaining the price of the article sold at the rate agreed upon.4
1 Wood v. Tassell, 6 Q. B. 235; Magee v. Billingsley, 3 Ala. 679; post, § 1032.
2 Claflin v. The Boston & Lowell Railroad Co., 7 Allen, 341 (1863). 3 Turleyv. Bates, 2 H. & C. 200 (1863).
4 Riddle v. Varnum, 20 Pick. 283. See, al30, Macomber v. Parker, 13 Pick. 182; Hawes v. Watson, 2 B. & C. 540; Downer v. Thompson, 6 Hill, 208; Houdlette v. Tallman, 14 Me. 400; Smyth v. Craig, 3 Watts & Serg. 14; Dennis v. Alexander, 3 Barr, 50. If a dealer in fish agrees to sell to a purchaser all of a certain kind that he should pack during a season, at the market prices, and, after a sale and delivery of a considerable quantity, executes and delivers to him a bill of parcels of a quantity more in anticipation of the arrival of the fishing vessels, and fish of the kind described in the bill of parcels are stored in warehouses of the vendor under direction of the purchaser, the sale is complete, and the title part of the goods, a delivery of a part will be considered as a constructive delivery of the whole, whenever the contract of sale is entire,1 it being in all cases a question of fact for the jury whether a delivery of a part was intended by the parties as a delivery for the whole.2 So, also, although the contract be severable, the same rule governs, unless intention on the part of the seller to surrender only a part is either expressed, or manifestly implied from the circumstances.3
§ 1020. Where the seller has done every thing that is required of him as to a portion of the goods, but something still remains to be done before delivery in regard to the rest, the goods which have been separated and designated, and are ready for delivery, become the property of the buyer, and are at his own risk;1 but the part in respect to which something remains to be done is at the risk of the seller, and as to them the sale is incomplete. Nor does it make any difference in such a case whether the contract be entire or severable. Thus, where a quantity of starch, in packages, was bought, and it was agreed that the different packages should be weighed by the seller, who accordingly weighed a portion of the starch, and delivered it to the vendee, and left a portion unweighed, and the vendee, in the mean time, became bankrupt, it was held that the weighing and delivery of a part of the starch did not transfer to the vendee the property in that which was unweighed.2 But in such a case those goods only are at the risk of the buyer until payment, in respect to which the seller has performed all that is required of him.3 Where the whole duty of the seller is completed, and nothing remains to be done by him in relation to any passes, even as against subsequent purchasers. Ropes v. Lane, 11 Allen, 591 (1866).
1 Thus an agreement for the sale of all the wood standing on certain land, to be delivered on the purchaser's land and there measured, and to be paid for according to such measurement, vests the title in the wood in the purchaser upon the delivery on his land. Richmond Iron Works v. Woodruff, 8 Gray, 447 (1857).
2 Hanson v. Meyer, 6 East, 614. See Rugg v. Minett, 11 East, 210; Simmons v. Swift, 5 B. & C. 857.
3 Ibid; 2 Bl. Comm. 448; Mason v. Thompson, 18 Pick. 305. A. sold B. 250 barrels of pork, part of a larger lot, all of the same quality, having the same marks, and all stored in the same cellar of A., but no separation was made; and then B. sold D. 150 barrels of the pork, and gave him an order on A. therefor, which being presented to A., he assented to hold the same on storage for D., but nothing was done to separate the 150 barrels from the other pork of similar brand still in A. 's cellar. While the pork remained so stored, B. became insolvent, and A. then refused to deliver the 150 barrels to D. on said order; and it was held that the 150 barrels were not so specified and separated from the whole mass that D. could maintain replevin therefor against A. Scudder v. Worster, H Cush. 573 (1853). See Jenner v. Smith, Law R. 4 C. P. 270 (1869).