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lading. The purchaser has a right to say " they are my goods, give me them, if you have made promises to the shipper inconsistent with my rights, look you to that." But the case is quite different if the original bargain rendered either the property or the right of possession conditional. The vendor then has a right to insist as against the purchaser on the fulfilment of those conditions, and the form of the bill of lading is of great weight as evidence, to shew whether he insists upon that right. Neither is there any peculiar legal effect in an invoice, but the terms of the invoice afford very strong evidence of what the terms of the agreement of sale are, and also of the vendor's intention to appropriate the specific goods, and the question, whether the directions not to deliver are contrary to the bargain, is, therefore, often decided by the terms of the invoice as a matter of evidence. Bearing these matters in mind, it is not difficult to reconcile Coxe v. Harden, with Brandt v. Bowlby, though at first glance they seem directly opposed to each other.
In Craven v. Ryder (a), in 1816, the contract was for the sale of twenty-four hogsheads of sugar, from Craven to French, free on board a British ship, two months' credit. Craven put twenty-four hogsheads on board the defendant Ryder's vessel, the George, which was that named by French, but he retained the lighterman's receipt, which expressed them to be shipped for and on account of Craven. The Court of Common Pleas decided, that Craven had never parted with
(a) Craven v. Ryder, 6 Taunt. 433.
the right of possession. Gibbs, C. J., said, " that the "plaintiffs might refrain from delivering the goods, "unless under such circumstances as would enable "them to recall the goods if they saw occasion." It seems very doubtful whether the property had passed under such circumstances from the vendor so as to free him from the risk of loss, but there was no occasion to decide that in Craven v. Ryder. It would seem, from Coxe v. Harden, that if the goods were appropriated to the contract, which was on credit, that Craven had no longer power to control the possession; and from Brandt v. Bowlby, it would seem, that the appropriation was not complete by the mere delivery on board the ship, unless it was done with the intention of appropriation.
Ruck v. Hatfield (a), in 1832, was a case nearly similar to Craven v. Ryder. The shipowner there, however, had refused to give a receipt, and it is to be observed, that Lord Tenterden, in his last edition of Abbott on Shipping, p. 379, cites the case as an authority that under such circumstances the vendor retains his rights, " at least as against the master of the ship," so that it appears that he did not consider it clear that, as against the purchaser, the vendor could retain any control after shipment.
1. THE PROPERTY DOES NOT PASS UNLESS THERE BE AN INTENTION TO PASS IT. 2. RULES FOR ASCERTAINING THIS INTENTION. 3. THERE MAY BE PROPERTY BY ESTOPPEL. 4. EFFECT OF EXPRESS CONDITIONS.
When the parties are agreed as to the goods on which the agreement is to attach, the presumption is, that the parties intend the right of property to be transferred at once, unless there be something to indicate a contrary intention. An agreement, therefore, concerning the sale of specific or ascertained goods, is prima facie a bargain and sale of those goods. But this arises merely from the presumed intention of the parties, and if it appear that the parties have agreed, not that there shall be a mutual credit by which the property is to pass from the vendor to the purchaser, and the purchaser is to be bound to the vendor for the price, but that the exchange of the money for the goods shall be made on the spot; no property is transferred, for it is not the intention of the parties to transfer any. In other words, a contract for the sale of specific chattels, is prima facie a contract to transfer the property, in consideration of the purchaser becoming bound to pay the price; but if the parties choose so to agree, it may be a contract to transfer the property, in consideration of the purchaser actually paying the price, and not merely of his engagement so to do.
In the earlier English law books, it seems to be assumed that all agreements are of this ready money character, unless there is something to indicate a contrary intention. Thus in Noy's Maxims, pp. 87, 88, 89, it is said, "In all agreements there must be quid "pro quo presently, except a day be expressly given "for the payment, or else it is nothing but communi"cation. * * * If the bargain be that you shall "give me 10?. for my horse, and you gave me one "penny in earnest, which I accept, this is a perfect "bargain, you shall have the horse by an action on "the case, and I shall have the money by an action of "debt. If I say the price of a cow is 4:1., and you "say you will give me 4J., and do not pay me pre"sently, you cannot have her afterwards without I "will, for it is no contract; but if you begin directly "to tell your money, if I sell her to another, you "shall have your action on the case against me. "* * * * jf j sen my horse for money, I may "keep him until I am paid, but I cannot have an "action of debt until he be delivered, yet the property "of the horse is, by the bargain, in the bargainee or "buyer; but if he presently tender me my money, "and I refuse it, he may take the horse, or have an "action of detinue; and if the horse die in my stables, "between the bargain and delivery, I may have an "action of debt for the money, because by the bargain "the property was in the buyer."
The part payment, or naming a day for payment, clearly indicate an intention in the parties that they should have some time to complete the sale by payment and delivery, and that they should in the meantime be trustees to each other, the one of the property in the chattel, the other of the price; and Noy was of opinion that the law, in such a case, executed their intention, and transferred the property at once subject to the vendor's rights. In the case which he puts of the cow, there was nothing to indicate such an intention to give time, and he seems to think that it was to be presumed, that such an intention did not exist. This presumption was, probably, reasonable and just in the simplicity of early times, but with the change of customs the presumption also has changed, and in modern times, (at least in commercial transactions,) the parties are taken to contemplate an immediate transfer of the property in the goods, and an immediate obligation to pay the price, with a reasonable time for delivery and payment, unless there be something to shew a different intention. "Generally speaking," said Bayley, J. in Simmons v. Swift (5 B. & C. 862), "where a bargain is made for the "purchase of goods, and nothing is said about pay"ment or delivery, the property passes immediately, "so as to cast upon the purchaser all future risk, if "nothing remains to be done to the goods, although "he cannot take them away without paying the price." But where the presumption is rebutted, either from the nature of the transaction, or from other circumstances that shew that the transaction is an exchange for ready money, the modern law does not differ from