Perhaps the most frequent application of the rule is to cases of the destruction of or injury to property while the subject of an executory contract of sale. In the case of personal property it is the general rule that payments made by the buyer are recoverable.2 Where goods are delivered to the buyer, however, and the title is retained by the seller merely as security for the price, the sale is in reality executed and the subsequent destruction of the goods should not be regarded as creating an impossibility of performance by the seller.1 In the case of real property a majority of the courts which have passed upon the question have declared, apparently upon the assumption that the purchaser acquires by the contract the substantial rights of ownership, that the risk of loss rests upon the purchaser.2 But in a number of important jurisdictions this view has been rejected and the risk of loss held to be with the vendor.3 Where the one who had paid money to an officer of a privateer for a share of the prizes she might make during a proposed cruise, which was prevented by the declaration of peace, was not allowed to recover.

1 Knowles v. Bovill, 1870, 22 L. T. R. 70, (Action to recover 150 paid for the use of a patent which the patentee was about to renew and for the use of a new patent which the patentee was about to take out. The patentee died almost immediately after receiving payment and without making the applications. Held: that the plaintiff recover.); Hudson v. Hudson, 1891, 87 Ga. 678; 13 S. E. 583; 27 Am. St. Rep. 270, (Action by son to recover value of services in caring for father under contract by which father agreed to will to his son the home place. Father became insane and could not make will. Held: that the plaintiff recover.); Butterfield v. Byron, 1891, 153 Mass. 517; 27 N. E. 667; 12 L. R. A. 571; 25 Am. St. Rep. 654, (Action for breach of contract for the erection of a building by defendant for plaintiff. Certain amounts were paid to defendant, and when the building was nearly completed it was destroyed by fire. Held: that the plaintiff was entitled to the money paid, subject to a set-off for work and materials furnished by defendant.). See also Bibb v. Hunter, 1866, 2 Duv. (63 Ky.) 494, where it was held that money paid by one who had been drafted to serve in the United States army to one who had agreed to become his substitute but who had been rejected by a revisory board was recoverable. But see Tweedie Trading Co. v. James P. McDonald Co., 1902,114 Fed. 984 (D. C. N. Y.), where recovery was denied of a sum paid under a contract for the transportation of laborers from the Bar-badoes to Panama although, because of a regulation of the government forbidding the exportation of laborers, it became impossible to carry out the contract. And in Woodward v. Cowing, 1816, 13 Mass. 216,

2 Logan v. Le Mesurier, 1847, 6 Moo. P. C. 116; Stone v. Waite, 1890, 88 Ala. 599; 7 So. 117; Meagher v. Carpenter, 1887, 8 Ky. Law Rep. (Ky. Super. Ct.) 702 ; Joyce p. Adams, 1853,8 N. Y. 291; Williams v. Allen, 1849, 10 Humph. (29 Tenn.) 336; 51 Am. Dec. 709: Kelly v. Bliss, 1882, 54 Wis. 187; 11 N. W. 488.

1 Chicago Railway, etc., Co. v. Merchant's Bank, 1890, 136 U. S. 268, 283; 10 S. Ct. 999; Roach v. Whitfield & Hannah, 1910, 94 Ark. 448; 127 S. W. 722; Jessup v. Fairbanks, Morse & Co., 1906, 38 Ind. App. 673; 78 N. E. 1050; 140 Am. St. Rep. 131; Phenix Ins. Co. v. Hilliard, 1910, 59 Fla. 590; 52 So. 799; 138 Am. St. Rep. 171; Burnley v. Tufts, 1889, 66 Miss. 48; 5 So. 627; 14 Am. St. Rep. 540; Tufts v. Wynne & Thompson, 1891, 45 Mo. App. 42; American Soda Fountain Co. v. Vaughn, 1903, 69 N. J. L. 582; 55 Atl. 54; National Cash Register Co. v. South Bay, etc., Assn., 1909, 64 Misc. R. 125; 118 N. Y. Supp. 1044; Whitlock v. Auburn Lumber Co., 1907, 145 N. C. 120; 58 S. E. 909; 12 L. R. A. (N. S.) 1214; Harley & Willis v. Stanley, 1909, 25 Okl. 89; 105 Pac. 188; 138 Am. St. Rep. 900; Goldie & McCullough v. Harper, 1899, 31 Ont. R. 284; Marion Mfg. Co. v Buchanan, 1907, 118 Tenn. 238; 99 S. W. 984; 8 L. R. A. (N. S.) 590; Osborn p. South Shore Lumber Co., 1895, 91 Wis. 526; 65 N. W. 184; Lavalley v. Ravenna, 1905, 78 Vt. 152; 62 Atl. 47; 2 L. R. A. (N. S.) 97; 112 Am. St. Rep. 898. Contra: J. M. Arthur & Co. v. Blackman, 1894, 63 Fed. 536 (C. C, D. Wash.); Bishop v. Minderhout, 1900, 128 Ala. 162; 29 So. 11; 52 L. R. A. 395; 86 Am. St. Rep. 134; Randle v. Stone & Co., 1886. 77 Ga. 501, (and see Whigham v. W. Hall & Co., 1911, 8 Ga. App. 509; 70 S. E. 23); Swallow v. Emery, 1873, 111 Mass. 355. See Williston, "Sales," Sec. 304.

2 Paine v. Meller, 1801, 6 Ves. 349; Kuhn v. Freeman, 1875, 15 Kan. 423; Marks v. Tichenor, 1887, 85 Ky. 536; 4 S. W. 225; Brewer v. Herbert, 1868, 30 Md. 301; Snyder v. Murdock, 1872, 51 Mo. 175; Manning v. North British, etc., Ins. Co., 1907, 123 Mo. App. 456; 99 S. W. 1095; Sewell v. Underhill, 1908,127 App. Div. 92 ; 111 N. Y. Supp. 85, (cf. Goldman v. Rosenberg, 1889, 116 N. Y. 78; 22 N. E. 259); Woodward v. Mc-Collum, 1907,16 N. D. 42; 111 N. W. 623; Dunn v. Yakish, 1900,10 Okl. 388; 61 Pac. 926; Morgan v. Scott, 1856, 26 Pa. St. 51. And see Sutton v. Davis, 1906, 143 N. C. 474; 55 S. E. 844; Conklyn v. Shenandoah Milling Co., 1911, 68 W. Va. 257; 70 S. E. 274. See also article by Professor Williston, 9 Harv. Law Rev. 106, 112.

3Gould v. Murch, 1879, 70 Me. 288; 35 Am. Rep. 325; Wells v. Calnan, 1871, 107 Mass. 514; 9 Am. Rep. 65; Wilson v. Clark, 1880, latter view prevails, payments advanced by the purchaser are recoverable.1