and Shepley v. Davies (a). The case, however, of Whitehurst v. Frost, decided by the Court of King's Bench in 1818, does not seem very consistent with the others. In that case Frost and Co. (b) had entered into a contract proved by this note, delivered by them to Townsend:" Mr. J. Townsend bought of J. and L. Frost ten tons of Greenland oil in Mr. Staniforth's cisterns, at your risk, at 397.-3907." At the time of the agreement, there were in this cistern forty tons of oil, the whole of which had formerly belonged to Dutton and Bancroft. Dutton and Bancroft had sold ten tons of this oil to Frost and Co., and Frost and Co. gave Townsend a delivery order on Dutton and Bancroft for "the ten tons of oil we bought of you." Nothing whatever was done to sever the ten tons from the rest of the forty. The King's Bench decided that as between Frost and Townsend the property had passed. The Court of Common Pleas in White v. Wilks (5 Taunt. 176), and Austin v. Craven (4 Taunt. 644), expressed themselves much dissatisfied with this decision, which they considered inconsistent with and overruled by the other decisions; but one of the Judges who decided Whitehouse v. Frost, subsequently in Busk v. Davis (2 M. & S. 397), explained the case on a principle quite consistent with the other cases, though it may be doubted whether the facts of the case of Whitehouse v. Frost as reported quite justify the distinction. "In Whitehouse v. Frost, (a) Shepley v. Davies, 5 Taunt. 617. said Le Blanc, J. "the owner of a large quantity of "oil in the mass sold a certain quantity of it to B., "who contracted to sell the same to C., specifically as an undivided quantity, and gave him an order upon "the owner for the delivery, which order the owner "accepted. The question that arose was not between "the owner and B., but between C. and B., who as "far as it was in his power had done every act to "complete the delivery, for he only pretended to sell "an undivided quantity. Therefore, whatever might "have been the case as between the owner and B., the "Court were of opinion that as between the subvendee "and B., the sale was complete." In the reported case no mention is made of there being any proof whatever of the agreement being to sell, not ten tons out of forty, but an undivided fourth part of every portion of the forty tons; unless the phrase "at your risk" bears that meaning. Frost and Co. seem to have professed to sell and deliver ten tons of oil belonging to them in Staniforth's cistern; and their defence to the action was, that they had no such oil, because it still remained the property of Bancroft and Dunkin. It may be doubted whether they were not estopped from setting up such a defence against their own agreement, but the decision does not seem to have been given on that ground. Subsequent appropriation. As has been already said, the specific goods must be agreed upon; that is, both parties must be pledged, the one to give and the other to accept those specific goods. This is obviously just, for until both parties are so agreed, the appropriation cannot be binding upon either; not upon the one, because he has not consented, nor upon the other, because the first is free. But the application of this principle leads to nice and subtle distinctions, which perhaps cannot be helped, but are not the less to be lamented. When the goods are selected from the first in the original agreement there is of course no difficulty on the point, both parties are then bound to apply the contract to those specific goods. Neither is there any difficulty where both parties have subsequently assented to the appropriation of some specific goods to fulfil an agreement that in itself does not ascertain which the goods are to be. The effect is then the same as if the parties had from the first agreed upon a sale of those specific goods. In the accurate language of Holroyd, J. (a), "the selection of the goods by the one party and "the adoption of that act by the other, converts that "which before was a mere agreement to sell into an "actual sale, and the property thereby passes." But the difficulty arises when the original agreement does not ascertain the specific goods, and one party has appropriated some particular goods to the agreement, but the other party has not subsequently assented to such an appropriation. Such an appropriation is revocable by the party who made it and not binding on the other party, unless it was made in pursuance of an authority to make the election (a) Rhode v. Thwaites, 6 B. & C. 388. conferred by agreement; or unless the act is subsequently and before its revocation adopted by the other party. In either case it becomes final and irrevocably binding on both parties. The question of whether there has been a subsequent assent or not, is one of fact; the other question of whether the selection by one party merely shewed an intention in that party to appropriate those goods to the contract, or a determination of a right of election, is one of law, and sometimes of some nicety. The general rule laid down by Lord Coke in Heyward's case (2 Co. 36), and adopted in Comyn's Digest, Election, seems to be, that when from the nature of an agreement an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may perform his part of the agreement; when once he has performed the act the choice has been made and the election irrevocably determined; till then he may change his mind as to what the choice shall be, for the agreement gives him till that time to make his choice. It follows from this, that where from the terms of an executory agreement to sell unspecified goods, the vendor is to dispatch the goods, or to do anything to them that cannot be done till the goods are appropriated, he has the right to choose what the goods shall be; and the property is transferred the moment the dispatch or other act has commenced, for then an appropriation is made, finally and conclusively, by the authority conferred in the agreement, and in Lord Coke's language, "the certainty, and thereby the property begins by "election," Heywood's case (2 Coke, 36); but however clearly the vendor may have expressed an intention to choose particular goods, and however expensive may have been his preparations for performing the agreement with those particular goods, yet until the act has actually commenced the appropriation is not final, for it is not made by the authority of the other party, nor binding upon him. This distinction, which though somewhat subtle seems to be logical, reconciles the two cases of Fragano v. Long and Atkinson v. Bell, which seem to be on the very boundary line that divides the two principles. In Fragano v. Long (a), in 1825, Fragano of Naples sent a written order to Birmingham for a quantity of hardware, to be dispatched on insurance being effected. The manufacturer at Birmingham, in pursuance of this order, packed up a cask of hardware and sent it to his shipping agents at Liverpool; it was marked with Fragano's initials, and insured on his account. The shipping agents were putting the goods on board a vessel, when, by the fault of the defendant, they were injured, and an action being brought for this wrong in Fragano's name, it was contended that it was ill brought, because the property in the goods, at the time they were injured, had not yet vested in Fragano; but the Court of King's Bench decided that the property was in Fragano from the moment (a) Fragano v. Long, 4 B. & C. 219. K |