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rally arises, such product may be the subject of sale and mortgage. The authorities which thus hold also recognize the other rule above stated. The authorities are by no means uniform, but we think the conflict in them has arisen from a failure to make a proper distinction. In Grantham v. Hawley, Hob. 132, it was held that a grant of that which the grantor has potentially, though not actually, is good, as a grant by the lessee of all the corn that shall be growing on the land at the end of the term. It was there said: "Though the lessor had it [the corn] not actually in him, nor certain, yet he had it potentially, for the land is the mother and root of all fruits. Therefore, he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant. A person may grant all the tithe wool that he shall have in such a year yet perhaps he shall have none; but a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter, for there he hath it neither actually nor potentially." * * *

Justice Redfield, in delivering the opinion in Smith v. Atkins, 18 Vt. 461, said: "It is, without doubt, true that the sale of a thing not in existence is, upon general principles, inoperative, being merely executory; that is, it confers no title in the thing bargained. But when the thing thereafter to be produced is the produce of land, or other thing, the owner of the principal thing may retain the general property of the thing produced, unless there be fraud in the contract, and it be entered into merely to defeat creditors." * * * In McCaffrey v. Woodin, 65 N. Y. 464, it is said: "It is well settled that a grant of the future produce of land actually in possession of the grantor at the time of the grant passes an interest in such future crop as soon as it comes into existence." *

*

In the present case the trees were in existence at the time of the contract, were transferred to and became the property of Schultz, the vendee, subject to a share of the crops for the years specified; the contract was executed by the plaintiffs, and operated to the great benefit of Schultz and his grantee, the defendant. This contract is one that the law ought to delight in sustaining. If it cannot be sustained, then no executed contract can be, where a party furnishes seed, and puts in the crop upon shares. The same reason that would defeat the right to recovery for the crop of peaches in this case would defeat the right to recover a crop of corn, wheat, or other grain, or strawberries and other fruits of like character. The defendant purchased with notice, and the purchase price was reduced on account of the plaintiffs' rights in the crop. We think that under the authorities above cited, as well as in reason and justice, plaintiffs and Schultz became tenants in common of the peaches for the years which they should select, and that defendant, having purchased with notice, stood in the same relation to plaintiffs that did his grantor. Defendant's counsel cite Bates v. Smith, 83 Mich. 347, 47 N. W. 249, and insist that it controls this case in their favor. The language of that case is broad, and, if strictly followed, would seem to include the present one; but we think the authorities above cited make a clear distinction between the natural products of the soil, wool from sheep, milk from cows, and the like. from the case that was then under consideration, and we are disposed to follow them. The language of that case must be construed in connection with its facts.

Judgment affirmed. The other justices concurred.

What effect has the Sales Act had upon this rule? Section 5, - subsec. 3, provides:

Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to 'sell the goods.

We are already aware of the marked distinction between contracts of sale and contracts to sell. The section lays down a positive rule of law, not a rule of presumption, that, even if the parties do intend to enter into a contract of sale, their intention will not be given effect, because the section says present sales of future goods shall operate as contracts to sell. The intention of the parties is highly important. As has already been said, the question of ascertaining intention is the most important single problem in the law of sales. The emphasis thus thrown upon the intention of the parties, and the very great effort manifested by the courts in attempting to carry out this intention, must not blind us to the possibility of the law's overriding intention. It does so very frequently. Individuals cannot be allowed to do everything they choose to do, because the rights of other people suffer to too great an extent. So in this case the rule of policy adopted in the Sales Act defeats intention.

But does the phrase "future goods" include sales of goods potentially possessed? Could it be urged that the section is meant to apply in all cases where it did apply at common law, but that the exception in favor of sales of goods potentially possessed were to be treated as exceptions under the Act? Probably not. Section 76, clause 9, provides:

"Future goods means goods to be manufactured or acquired by the seller after the making of the contract of sale."

The natural meaning of these words includes goods potentially possessed and it would seem clear, therefore, that the commonlaw doctrine of potential possession as applied to sales of goods has been abolished by the Sales Act.

This section of the Sales Act does not apply to mortgages of future goods. Section 75 provides:

The provisions of this act relating to contracts to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge, or other security.

It is possible, therefore, to mortgage after-acquired property, but the extent to which this may be done—that is, the fixing of the precise nature of the rights acquired by the mortgagee prior and subsequent to the acquisition of the property as against judgment creditors and subsequent purchasers of the mortgagor-is a matter upon which the courts are not entirely agreed. It may be mentioned that, when after-acquired property may be mortgaged at all, the rule is not confined to the mortgaging of property

1 See the article by Professor Williston in 19 Harvard Law Review, 557, for a full discussion of these questions.

potentially possessed.

The rule applies to all property, whether

potentially possessed or not.

SECTION 6.-PASSING OF TITLE TO PROPERTY CONTRACTED TO BE SOLD UPON ITS DELIVERY

TO A CARRIER OR OTHER BAILEE

The most common transaction which calls for an application of the presumption that title passes when there has been an unconditional appropriation assented to by both parties arises where goods are delivered to a railroad, express, or shipping company, or other carrier, for shipment to the buyer. In the light of previous cases let us examine into the situation with a view of ascertaining what the law ought to be. Let us suppose a contract to sell goods of a certain description. Buyer and seller have their respective places of business in different cities. (1) The contract may result either from negotiations carried on by mail or telegraph or through salesmen sent out by the seller. The contract is one for unascertained goods. The goods are to be sent by freight to the buyer. (2) Upon receiving the order, the seller will have his clerks select the goods. (3) They will be sent to the packing room, boxed, and the name of the buyer will be written. on the packages. (4) The goods will then be taken to the loading platform, and orders will be issued to the truck drivers to take the goods to a designated freight office and to procure bills of lading. (5) The goods will then be loaded on the seller's trucks, taken to the freight shed, and unloaded on the railroad company's platform. (6) The driver reports the delivery to the freight agent, and bills of lading are made out, running to the buyer as consignee. (7) The goods are loaded into a car. (8) The car is sealed and taken to the switchyards. (9) The train is made up and leaves the terminal. (10) The goods arrive at destination and are unloaded on the company's platform. The consignee is notified of the arrival of the shipment.

At what moment did title pass? This is by no means an idle or an easy question. When goods are lost or damaged, the event occurs at a particular moment. The holder of the title at that moment sustains the loss. If the buyer or seller be adjudicated bankrupt, the order of adjudication is entered at a particular moment, and the trustee's title to the bankrupt's property for the benefit of his creditors is acquired at a particular moment. Property which at that moment belonged to the bankrupt goes to the trustee. If in the normal course of events title would have passed to the bankrupt five minutes later, the trustee gets no title to the goods. Again, if either buyer or seller undertakes to resell the goods, that sale is consummated at a particular instant of time. If the seller then had title, it passed on to his purchaser. If he did not have title, the purchaser will not obtain the goods.

Let us return to the illustration. When did title presumptively pass? Notice that when act (3) was done—i. e., the goods packed and marked with the buyer's name-we have an act which, under other circumstances, unquestionably would be an act of unconditional appropriation, and title would then pass, if there was the requisite assent by both parties. But in this case is it reasonable to suppose that the parties intended to pass and receive title at so early a moment? Hardly. It is much more reasonable to suppose that the parties intended that title should not pass until the seller had performed the last act with respect to the goods which, under the contract, it was his duty to perform. This act consisted in (1) the actual delivery and unloading on the company's platform, coupled with (2) the act of obtaining from the freight agent a recognition that from that instant the railroad company regarded itself as having the possession of the goods and the responsibility for their safe keeping. And so the law is, as now codified in the Sales Act:

Section 19, Rule 4. (2) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section 20. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words "Collect on Delivery" or their equivalents.

It may not be out of place again to call attention to the fact that we are dealing only with a rule of presumption, not an unbending rule of law. Title may pass at an earlier date, and it may pass at a later time. The above rule merely provides that, in the absence of other evidence manifesting a contrary intention, title will pass at the moment the goods are delivered to and accepted by the carrier's agents.

No cases have been inserted where title did pass at a time earlier than that at which the goods were delivered to the carrier, but these cases are not uncommon. Suppose that a buyer goes to a distant city to purchase an automobile. He finally selects one, tries it out, and buys it, let us suppose, in this case, on credit. The car is to be shipped to him. That night, and before the car is taken out of the seller's sales room, the car is stolen or destroyed by fire. The buyer will be obliged to pay the price. It was his car that was lost. Even this result could be changed by evidence showing that, in spite of the fact that this was a sale of ascertained goods, the title was not presumed to pass until the seller delivered the car to the carrier.

Quite a number of cases follow where title was held to pass at a time subsequent to delivery to the carrier. This kind of case is

the more common situation, where the general presumption that title passes on delivery to the carrier is overcome.

No case has been inserted for the purpose of establishing the general rule which we have been discussing. We shall presume that that is fairly well understood at this point. But we do want to find out, especially, the circumstances where the presumption is deemed to be inapplicable. Perhaps the idea has already been grasped that in the study of law, and the study of its application to varied states of fact, the real understanding of the rules results from the discovery of the outer limits of the rule; that is, we want to discuss these cases which are just barely within the rule and those cases which are just slightly outside of the rule, for it is just this sort of study that enables us to employ a mathematical term -to plot the curve made by the principle. One of the most important things to learn about the law is the uncertainty which invariably attends its application to the infinite variety of the facts of business. Business transactions change in character, and so does the law, because the legislatures and the courts change it. It is conceivable that a legislature could, by sweeping changes in the law, wipe out in an instant all the law that one knew; but no series of new statutes or repealing acts can take away from one who has struggled with a substantial number of actual cases the deep appreciation of the nature of legal relationships, the source of controversy, and of the knowledge of some things that may be done to avoid the losses consequent upon the failure to note the legal aspects of business. The first case, therefore, simply presents a border line case.

GEHL v. PEYCKE BROS. COMMISSION CO.

(Supreme Court of Wisconsin, 1914. 158 Wis. 494, 149 N. W. 275.) Action by N. V. Gehl, sole trader as N. V. Gehl & Co., against the Peycke Bros. Commission Company, to recover the purchase price of a shipment of two car loads of cabbage from Milwaukee to Kansas City. The suit was begun in the civil court for Milwaukee county, and resulted in a judgment in favor of the plaintiff. An appeal was taken to the circuit court, and an order was therein entered reversing the judgment of the civil court and awarding a new trial in the circuit court. Plaintiff appealed from such order.

The questions raised by the appeal on the merits involve the determination of where, under the agreement between the parties, the delivery of the cabbage took place. It was damaged by frost in transit. Plaintiff claims, and the civil court found, that the place of delivery was Milwaukee. The defendant contends, and the circuit court held, the place of delivery was Kansas City. The following facts determine the solution of the question involved:

On January 2, 1912, the defendant, a commission company located at Kansas City, Mo., telegraphed the plaintiff, a dealer in Milwaukee, as follows: "Wire lowest strictly first class Holland free from frost, prompt shipment." To which plaintiff on the 3d replied by telegraph: "Offer U. R. T. five forty two, shipment to-morrow weather permit

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