§ 1021. But where the terms of a contract of sale show an intention not to transfer the possession of property until after the performance of some act by the seller,4 and especially where a future time of delivery is fixed,5 the title does not pass until such act be performed, or until the time fixed for delivery. Thus a written contract for 8000 bushels of corn, to be delivered at a future time, at a place named, and to be paid for as fast as delivered, at a certain price per bushel, is wholly an executory contract, and no title passes until delivery.6 And although, where a specific chattel was sold for a fixed price, it being assumed to contain a certain quantity, and the price was paid, but by the terms of the contract the seller was to retain possession, carry the chattel to a certain place, there to deliver it at a certain time, and if, upon admeasurement it was found to contain a larger quantity than it had been assumed to contain, an additional price was to be paid at a fixed rate for the surplus, it was held that, until measurement and actual delivery, the sale was incomplete, and that a loss which accrued in the interim was to be borne by the vendor.1 So, also, where an executory contract of sale was made, as follows: "I, A. B., agree to purchase, and do hereby purchase, of T.," a certain quantity of cheese, "if he makes as much," and certain cattle at fixed prices, "T. to keep the cattle on his farm, free of any expense, until foddering time, if there cannot be any sale made, that will answer before; the cheese to be kept till the first of November next, unless called for sooner; and for the payment of the amount of these articles, B. is to discharge all the claims he may have against T., and the balance he is to pay in cash whenever demanded; " it was held that the property in the articles only passed as they were delivered, and that the property in the articles not delivered remained in T.2 But where, under an agreement by a fish-dealer to sell all of a certain kind that he should pack during a season, all the fish on hand at a particular time are exhibited to the purchaser and the prices fixed in anticipation of the arrival of the fishing vessels, and the fish have been inspected, marked, and made ready for shipment, and they are all delivered to the purchaser with intent to complete the sale, and it is agreed that they shall be stored where they are for a time by the vendor, at a particular price, the sale is complete, and the title to the whole of the fish passes, as between the parties, although by mistake bills of parcels which are executed to exhibit the transaction omit to include a portion of them, and the bills are not then settled.3
1 Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 1 B. & P. N. R. 69; Sands v. Taylor, 5 Johns. 395; Smith v. Surman, 9 B. & C. 561; Shurtleff v. Willard, 19 Pick. 202; Boynton v. Veazie, 24 Me. 286.
2 Pratt v. Chase, 40 Me. 269.
3 Dixon v. Yates, 5 B. & Ad. 339; Bunney v. Poyntz, 4 B. & Ad. 568; Payne v. Shadbolt, 1 Camp. 427; Crawshay v. Eades, 1 B. & C. 181. If a bill of sale of barrels of mackerel, describing them as marked No. 1, No. 2, and No. 3, respectively, includes all that the vendor has on hand of any particular number, the title thereto will pass to the purchaser, although the same are not separated from the other barrels of mackerel. But if the bill of sale does not include all that the vendor has on hand of any particular number, and no separation or special designation is made of those which are intended to be sold, the title will not pass, although the vendor gives to the vendee a storage receipt for them. Ropes v. Lane, 9 Allen, 502 (1865).
4 See Kimball v. Jackman, 42 N. H. 242 (1860).
5 Thus, a sale of a hog on credit, to be kept by the vendor until the purchaser shall call for it, and then paid for at its market price according to its then weight, after which the parties go together to the pen where the hog is, and the purchaser directs the vendor to keep it well, who assents, is not a sufficient sale and delivery against a subsequent purchaser. Rourke v. Bullens, 8 Gray, 549 (1857).
6 Ormsbee v. Machir, 20 Ohio St. 295 (1870).
§ 1022. A sale without delivery is, however, valid as against the vendor, and the title will pass from him, though the goods at the time of sale are tortiously possessed by a third party.1
1 Logan v. Le Mesurier, 11 Jur. 1091. See, also, Low v. Andrews, 1 Story, 38.
2 Mason v. Thompson, 18 Pick. 305. See, also, Low v. Andrews, 1 Story, 38; Valentine v. Brown, 18 Pick. 549.
3 Ropes v. Lane, 11 Allen, 591 (1866).
§ 1023. The duty of the seller, in respect to deliver}-, is often varied and extended by the custom of the trade.2 Thus, it being the custom, in the sale of goat-skins, to count the number of skins in each bale, - where goat-skins were sold, and consumed by fire, before they were counted, the loss was held to be that of the seller.3
§ 1024. When there is no agreement as to the time at which payment is to be made, the presumption is that payment and delivery are to be simultaneous; and the seller is not bound to deliver until payment is tendered.4 But, if a particular time be agreed upon, or if the goods be sold upon credit, the property vests in the buyer, as soon as the seller has completely performed his part of the contract.6 So, also, in the absence of any agreement as to the time of payment, if the goods be voluntarily delivered, without any fraudulent representation or inducement by the buyer, the absolute right of property thereby passes to the buyer.1 If, however, the goods be obtained fraudulently, as upon false pretences, the vendee thereby acquires no right to them.2
1 Webber v. Davis, 44 Me. 147 (1857), citing and approving Cartland v. Morrison, 32 Me. 190.
2 Zagury v. Furnell, 2 Camp. 240; Goodall v. Skelton, 2 H. Bl. 316.
3 Zagury v. Furnell, 2 Camp. 210.