In the same

sold, provided the buyer performs his part of the contract. manner, likewise, the purchaser cannot procure the sale to be annulled, by refusing to receive the goods and to pay the price." (a)

When the acts of payment and delivery are concurrent, and constitute mutual conditions.—If different times have not been appointed for delivery and payment, the acts are concurrent and constitute mutual conditions to be performed at the same time, so that the purchaser cannot in general demand the thing sold without paying or offering to pay the price, nor the vendor the price, without delivering or offering to deliver the subject matter of the sale. "If I sell you my horse for 107., if you will have the horse I must have the money, or if I will have the money you must have the horse" (b)

If, on the other hand, a precise time has been appointed for the payment of the price, and no time, or another and different time, is fixed for the delivery, the acts are not concurrent, and do not constitute mutual conditions. If one party has agreed to pay his money before he is to have the thing for which the money is to be paid, he must fulfil his engagement, however foolish and imprudent it may happen to be. As if A, by agreement, undertakes to pay 1007. for a horse purchased by him on the first of January, and B agrees to deliver the animal on the first of April following, here B may have an action against A for the money, without delivering or offering to deliver the horse, as his time was not then come. (c)

When the right of property and the risk of loss pass by the bargain, but not the right of possession.—When a bargain, properly authenticated, (d) is made for the purchase, at an agreed price, of specific goods, which have been selected and approved by the purchaser, and put into a deliverable state and placed at his disposal, the right of property forthwith passes to such purchaser; but, if the price is not paid, or part only of it has been paid, and credit has not been given, the right of possession continues in the vendor, until payment or tender of the whole, or of the rest of the purchase money, and this, whether part of the goods have been delivered to the purchaser, or the entire commodity remains in the hands of the vendor. (e) The goods in this case remain at the

(a) Domat's Civil Law, b. i. & ii. sect. 2, 3, xx. sect. 4, ix. Dallas, C. J. Leigh v. Paterson, 2 Moore, 591. Philpots v. Evans, 5 M. & W. 477. Pothier, Traité du Contrat de Vente, partie 1, art. 3.

(b) Holt, C. J., Calonel v. Briggs, 1 Salk 113. Lock v. Wright, 1 Str. 571; 8 Mod. 41, s. c. Ughtred's case, 7 Co. 10 b. Wilmshurst v.

risk of the purchaser, and if they are burned, or destroyed by accident, before payment of the price, the loss is the loss of the purchaser, and he must pay his money, although he can never have the thing for which he agreed to pay it.

"If I sell my horse for a sum of money, I may keep him until I am paid, yet the property of the horse is, by the bargain, in the bargainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse or have an action of detainment, and if the horse die in my stable, between the bargain and the delivery, I may have an action of debt for my money, because, by the bargain, the property was in the buyer." (ƒ)

By contract notes of purchase and sale the vendor agreed to sell and the purchaser to buy "a stack of hay standing in Canonbury Field, Islington, at the sum of 1457., to be paid on the fourth of February next, the hay to be allowed to stand on the premises until the first of May next, and not to be cut till paid for ;" and it was held that by this bargain there was an immediate transfer of the right of property to the purchaser, though the price was not to be paid or the hay cut until a future period, and the hay having been accidentally destroyed by fire, whilst it remained in the possession of the vendor, that the purchaser must bear the loss. (g) "The right of property and the right of possession are distinct," observe Bayley and Holroyd, Js. "The right of property may be in one person, and the right of possession in another. The vendor may have a lien upon the goods he has sold, a qualified right to retain possession of them until the price is paid,-while the property in them may be in the vendee. It is a rule in every case of a sale of goods, that if nothing remains to be done on the part of the seller, as between him and the buyer, before the goods are to be delivered, the property in the goods passes immediately to the buyer, and the property in the price to the seller; but that if anything remains to be done on the part of the seller, the property does not pass until that has been done. In this case, therefore, I am of opinion, not only that the property in the hay passed immediately to the buyer by virtue of the contract, but also that the seller thereby immediately acquired a property in the price agreed to be paid for the hay, although the payment was not to be made, nor the hay to be cut, until a future period. Then the property in the hay having passed to the

4 B. & C. 948. Simmons v. Swift, 8 D. & R. 702; B. & C. 862. Clarke v. Spence, 4 Ad. & E. 469. Hansom v. Meyer, 6 East, 625. Dixon v. Yates, 5 B. & Ad. 340. Martindale v. Smith, 1 Ad. & E., N. S. 395.

(f) Noy's Maxims, ch. 42, p. 88. Bro. Abr. Contr. pl. 26. Bayley, J., Tarling v. Baxter, 9 D. & R. 276. Barr v. Gibson, 3 M. & W. 390. (g) Tarling v. Baxter, 9 D. & R. 272; 6 B. & C. s. c.

buyer, and the hay having been accidentally destroyed before the day of payment, the buyer must bear the loss."

A quantity of turpentine was sold by auction at a fixed price per cwt., to be delivered in casks, each cask to contain a certain quantity, to be filled up by the vendor and removed by the purchaser; all the casks were filled up, except ten, and were placed in the defendant's warehouse, at the disposal of the purchaser. Before they were removed, the whole quantity was consumed by fire, and it was held that the right of property in the casks which had been filled up and placed at the disposal of the purchaser, had passed to the latter, and that he must stand to the loss; but as to the remaining quantity, which had not been selected and weighed and made ready for delivery, that it continued in the vendor, and at his risk. (i) And the right of property and the attendant risk may be transferred by the buyer to a third party by another contract of sale, although the price may not have been paid and the right of possession divested out of the original vendor. (k)

To what extent the contract must be completed to operate as a transfer of the right of property.

But the right of property does not pass so as to subject the purchaser to all future risks, unless both the precise thing sold and the price to be paid for it, have been clearly and distinctly ascertained.

Ascertainment of the subject matter of the sale.-If anything, for example, remains to be done for the purpose of ascertaining the quantity, or the identity and individuality of the thing sold, such as measurement or weighing, or the selection and separation of the article from a mass of the commodity in bulk, or from a number of articles of a similar character and description, the right of property and the risk are not transferred to the purchaser until such selection and separation have been made, and the precise thing to be delivered has been ascertained and tendered to the purchaser, or, if it was to be fetched away by the latter, until it has been set apart and notice has been given him that it is ready for delivery. (1) Thus, by the sale of a horse generally at a fixed price, no right of property in any particular horse can vest in the purchaser until the animal has been selected and identified and tendered to the buyer, or, in case it was to be fetched away by the latter, until it has been selected and set apart for him, and notice has been given him that the animal is at his disposal, and that he may receive it on payment of the price.

(i) Rugg v. Minett, 11 East, 210.

(k) Scott v. England, 14 Law J. Rep. N. s. Q. B. 43. Jenkyns v. Usborne, 13 ib. 196. (C.P.)

(1) Austen v. Craven, 4 Taunt. 648. White v. Wilks, 5 Taunt. 176.

On a sale of muslins, where the note or memorandum of the contract of sale was to this effect, "Bought by Anne Knight of Frances Hopper, 100 pieces of muslins at 408. a piece, to be fetched away by ten pieces at a time, and paid for as taken away," what was relied upon by Holt, J., as altering the property immediately, was, that the particular pieces to be delivered had been marked and sealed by the buyer. (m)

Ascertainment of the price. So long also as anything remains to be done, as between the purchaser and the vendor for the purpose of ascer taining the price of the article, the right of property and the risk of loss are not altered.

A contract of sale was entered into in the following terms: "I have this day sold the bark stacked at Redbrook, at 91. 5s. per ton of 21 cwt., to Hezekiah Swift, which he agrees to take and pay for it on the 30th of November." This contract was signed by the vendor and purchaser, and two persons were appointed by them to see the bark weighed. Eight tons 14 cwt. of the bark were weighed and delivered in the presence of the appointed parties, within a few days after the signing of the contract, but before the residue was weighed, a high flood arose and injured it, whereupon the purchaser tendered payment of the eight tons 14 cwt. which had been weighed, and refused to take and pay for the remainder; and it was held that the right of property in the unweighed residue had not been altered, neither, consequently, had the risk of loss, and that no action for the price could be sustained against the purchaser. "Inasmuch," observes Bayley, J., "as the bark is to be paid for at 97. 58. per ton, and as the price could not be ascertained until the act of weighing took place, which was an essential thing to be done by the seller, the property in the bark did not, in my opinion, vest in the purchaser until that act was done. It is clear that the seller had a right to insist upon the actual possession of the bark remaining with himself, or under his control, until the act of weighing was completed. If the vendor had intended to get rid of his own liability to any risk to which the bark might be exposed, he might have given notice to the purchaser that he would at a given period cause the bark to be weighed and the price ascertained, and thus have cast upon the purchaser all liability for risk. That was a matter of option with himself, but until he had performed the act of weighing, either at his own instance or at the desire of the defendant, I think that all the consequences arising from the bark being allowed to remain in the possession of the seller, must be at his risk, and not at that of the buyer." (n) So where the contract of (m) Knight v. Hopper, Skin. 647.

(n) Simmons v. Swift, 8 D. & R. 703, 4, 5; 5 B. & C. 862, 3, s. c.

sale was in the following form, "Bought of Mr. S. Zagury, 289 bales of skins, from Mogadore, per Commerce, Captain J. Horswell, containing five dozen in each bale, at the rate of 57s. 6d. per dozen, to be taken as they now lay with all faults, paid for by good bills at five months," and it appeared that by the usage of trade it was the duty of the seller of goat. skins by bales in this manner to count them over, that it might be seen whether each bale contained the number specified in the contract, and that before any enumeration of the skins in question, the whole were destroyed by fire at the wharf where they lay at the time of the sale, it was holden. that an action could not be maintained against the purchaser for the value of the skins, as the enumeration which was necessary to ascertain the price preceded the vesting of the right of property in the purchaser. (0)

Every thing that is to be done on the part of the vendor to complete the sale, and place the article or thing sold at the disposal of the purchaser, so far at least as to enable the latter to obtain possession of it and deal with it as he may think fit, on payment or tender of the price, must be performed before the right of property and the risk of loss are altered. (p) The article, also, when put into a deliverable state, must, where the purchaser has had no previous opportunity of inspection, fairly correspond in quantity and quality with the thing bargained for, as no man can be compelled to take and pay for a commodity different from that which he agreed to buy. (q) But when every thing that the seller is to do to complete the sale has been faithfully performed, the property and the attendant risk pass to the purchaser, although the latter may not have got the right possession of the subject matter of the sale, or perfect control over it, by reason of the non-performance of some act to be done exclusively by him, such as procuring wines and spirits to be gauged by a custom-house officer, in order to ascertain their strength preparatory to the calculation of the duty, payment of the duty when calculated and ascertained, or the nonperformance of any other act which it is incumbent on the buyer alone to perform. (r)

Contracts for the making or manufacture of goods and chattels.— Where any specific chattel is ordered to be made or manufactured, the right of property is not vested in the party who gives the order, nor the right to the price in the vendor, until the thing ordered is completed and made ready for delivery, and has been approved by the purchaser, or some

(o) Zagury v. Furnell, 2 Campb. 239. (p) Smith v. Chance, 2 B. & Ald. 753. (g) Kent v. Huskisson, 3 B. & P. 233; Post, ch. 7, implied warranties on sales.

(r) Rugg v. Minett, 11 East, 209, 217. Studdy v. Saunders, 8 D. & R. 403. Hinde v. Whitehouse, 7 East, 558.