453; Slingerland v. Morse, 8 Johns. 474; Barr v. Myers, 3 Watts & Serg. 295. In Vermont and New York, however, portable goods must be delivered at the domicile of the creditor; but if the goods be ponderous and bulky, the rule of the text obtains. 2 Kent, Comm. lect. 39, p. 507; Goodwin v. Holbrook, 4 Wend. 377; Chipman on Cont. 29, 30; Pothier, Traité des Oblig. n. 512; Contrat de Vente, No. 45, 46, 51, 52, B.
1 Barr v. Myers, 3 Watts & Serg. 295.
2 2 Kent, Comm. lect. 39, p. 508; Co. Lit. 207 a, and Peytoe's Case, 9 Co. 79 a; Lamb v. Lathrop, 13 Wend. 95; Savary v. Goe, 3 Wash. C. C. 140; Smith v. Loomis, 7 Conn. 110; Garrard v. Zachariah, 1 Stew. 272; Thaxton v. Edwards, Ib. 524; Johnson v. Baird, 3 Blackf. 182; Le-ballister v. Nash, 24 Me. 316.
3 Middlesex Co. v. Osgood, 4 Gray, 447 (1855).
4 2 Kent, Comm. lect. 39, p. 508; Mason v. Briggs, 16 Mass. 453; Bailey v. Siraonds, 6 N. H. 159, and cases cited immediately above.
5 See post, § 1325-1330.
6 Bloxam v. Sanders, 4 B. & C. 941; Startup v. Cortazzi, 2 C, M. & R, 169; Startup v. Macdonald, 7 Scott, N. R. 285, 297.
1 Langfort v. Tiler, 1 Salk. 113; Lanyon v. Toogood, 13 M. & W. 27.
2 Wilinshurst v. Bowker, 3 Scott, N. R. 272; Milgate v. Kebble, lb. 358; Martindale v. Smith, 1 Q. B. 389.
3 See post, § 517; Maclean v. Dunn, 4 Bing. 722.
4 Phillpotts v. Evans, 5 M. & W. 475. But see Cort v. Ambergate, etc. Railway, 17 Q. B. 127; 6 Eng. Law & Eq. 236; Ripley v. McClure, 4 Exch. 345; Hochster v. De la Tour, 2 El. & B. 678; Frost v. Knight, Law R. 7 Exch. 111 (1872), establishing the contrary in England. See, also, Smoot's Case, 15 Wall. 37, 49 (1872); Churchward v. The Queen, Law R. 1 Q. B. 173, 208 (1865); Greenway v. Gaither, Taney, 227, 230; Roper v. Johnson, Law R. 8 C. P. 167 (1873).
§ 1031. We now come to constructive delivery. When the goods are so ponderous and bulky that they cannot be manually delivered, or when they are not in the personal custody of the seller, the law does not require an actual delivery, but only that they be placed in the power of the purchaser, or that his authority as owner be acknowledged by some formal act or declaration of the seller, or be asserted by some formal act of the buyer, with the assent of the seller. The transference of any article, which is an indication or evidence of ownership, or any act by either party assented to by the other, which implies a change of ownership, is a sufficient constructive delivery;2 for the law never insists upon an actual delivery, when it would be impracticable. Thus, the delivery of the key of a building sold, or of a warehouse in which the goods sold are deposited,1 or the transferring them on the books of the wharfinger or warehouse-keeper to the name of the buyer, with mutual consent, or the delivery of the receipt, carrier's bill of lading,2 ticket, sale-note, dock-warrant, certificate, or other usual evidence of title to goods in the situation of goods sold, is a sufficient delivery of them.3 So, also, upon the same principle, the title to a ship at sea may be passed by the delivery of the grand bill of sale, which is the documentary evidence of title.4 And goods at sea may also be conveyed to the buyer by the delivery of the bill of lading or assignment, if so intended.5 So, also, the marking of a bale of goods in a warehouse with the vendee's name, with his consent, is a sufficient delivery to vest the title,1 but not to constitute an acceptance within the statute, unless the terms of payment be settled, and the contract be otherwise complete.2 So, if the vendor take the vendee within sight of ponderous articles, such as logs lying within a boom, and show them to him, it is a sufficient delivery, although the vendee, in compliance with the usage, allow them to remain there: because this is the only practicable mode of making an immediate delivery of such articles, in such a situation;3 and the law only requires such a delivery of the articles sold as is consistent with the nature of the thing. So, also, on the same principle, where goods are stored, and are inaccessible to the parties - as if they be in the custody of the officers of the government - the delivery of a sample is a sufficient delivery of the whole, if it be accepted as a part of the quantity purchased; or as a sign of a general transference of all the goods admitted to be sold by the parties.4 The ground upon which such acts are considered as amounting to a constructive delivery is, that they manifest an intention on the part of the seller to part then with his property, and an intention on the part of the buyer to assume a title thereto.5 These acts are, hownot consent to hold them for the vendee, yet, if a request be made to him, and a bill of parcels be delivered to the vendee, the property would be thereby changed.1 But if no notice of the sale be given to the bailee,2 the mere delivery of the bill of parcels would not be sufficient as against a subsequent attachment by a creditor of the vendor.3 So the delivery and recording in the town clerk's office of a bill of sale of personal property in the possession of a third person, do not amount to a constructive or symbolical delivery of the property, if there is nothing to prevent an actual delivery of the property, and no notice of the sale is given to the person in whose possession the property is.4 So, also, the mere sending of a delivery order on a warehouseman to the purchaser, without solicitation on his part, will not alone transfer the property to the vendee, where it appears that it is not in a deliverable state.6 But a sale of grain stored with an elevator company, as to those goods in regard to which the seller has performed all his duty.1
1 Per Parke, B., Startup v. Macdonald, 7 Scott, N. R. 285, 297; Chipman on Contracts, p. 251, 253.
2 Manton v. Moore, 7 T. R. 67; Chaplin v. Rogers, 1 East, 194; Boynton v. Veazie, 24 Me. 286.
1 Packard v. Dunsmore, 11 Cush. 282; Vining v. Gilbreth, 39 Me. 496; Chappel v. Marvin, 2 Aiken, 79; Wilkes v. Ferris, 5 Johns. 335. A. agreed to sell B. a quantity of flour, and forwarded it by railroad deliverable to his own order, but before its arrival gave B. a written order making it deliverable to B. B. notified the carrier of this order, and paid the freight. The carrier marked the car containing the flour and other goods, and directed the same to be run upon a side-track near B. 's warehouse for the purpose of delivery. Before the car had been so removed, the flour was attached by A.'s creditors. Held, that there had been a sufficient delivery to pass the property from A. to B. Hatch v. Bayley, 12 Cush. 27 (1853). And see Hatch v. Lincoln, 12 Cush. 31.