were put on, which, when properly dried, completed the piano so that it was ready for shipment. This process took from two to three weeks, when the instrument was boxed and shipped. Defendant repudiated the contract on the fifth day from the date of sale.

The facts and circumstances show that the piano was not in a deliverable condition at any time up to the date of the repudiation on April 7, 1914. The contract also required the shipment of the instrument from Chicago to Hartford, Wis., which could not be done. and in fact was not attempted to be done, within two weeks or more after the sale. The conduct of the parties at the factory and in negotiating the sale, when taken in connection with the terms of the contract and the circumstances of the case, fail to show that it was mutually understood and intended that the property in the instrument should pass to defendant at this time. It is plain that the defendant had no control of nor any dominion over the instrument while in the factory, and that the Cable Company retained full control and possession to deal with the property as its own. The evidence, showing the entire transaction, does not permit of the inference that the parties mutually intended that the property passed to defendant under the agreement of sale of the instrument, as contemplated by the provisions of section 19, rule 2, of the Sales Act. * * *

* *

It is obvious that the piano was not in a deliverable state until the coloring of the case had been altered to comply with the conditions. of the sale within the contemplation of this statute, and hence the property had not passed when defendant repudiated the sale. Under the circumstances and conditions of the sale, defendant's breach of the contract on April 7, 1914, renders her liable to the plaintiff for the damages it suffered from such breach. * * * It was held in Badger State Lumber Co. v. Jones Lumber Co., 140 Wis. 73, 121 N. W. 933, that, where specific performance cannot be enforced, either party may stop performance and subject himself to the payment of compensatory damages. "In such cases it is held that an action cannot be maintained to recover the contract price, but may be maintained to recover damages for the breach of the contract"-citing cases in this court. The complaint is framed for recovery of the purchase price. and no evidence was offered to show damages resulting from the breach of contract.

Appellant makes no claim upon the record for recovery of damages. The most liberal rule of practice, * * * in the light of the record, would entitle plaintiff to no more than nominal damages, and requires affirmance of the judgment. * *

The judgment appealed from is affirmed.

AUTOMATIC TIME-TABLE ADVERTISING CO. v. AUTOMATIC
TIME-TABLE CO.

1

(Supreme Judicial Court of Massachusetts, 1911. 208 Mass. 252, 94 N. E. 462.)

Action by the Automatic Time-Table Advertising Company against the Automatic Time-Table Company. There was a verdict for plaintiff, and defendant brings exceptions.

This was an action of contract for damages for defendant's failure to comply with its terms. The contract recited that defendant sold plaintiff the following goods: Twelve automatic time-table machines

complete, together with all printed matter, time-tables, electro-plates, printed goods and advertising matter, and advertising contracts, relating to said machines, which were sold, assigned and transferred to the said Automatic Time-Table Company by the said Automatic Time-Table Advertising Company under agreement, dated July 13, 1909. Said machines are described and located as follows: One machine located at Merrimack Square, in Lowell, Mass., one machine located in Lawrence, Mass., one machine located in Haverhill, Mass., one machine located in Salem, Mass., one machine located in Lynn, Mass., one machine located in Chelsea, Mass., six machines now standing in the shop of the Automatic Time-Table Company, 58 Middle street, Lowell, Massachusetts, and numbered on door on battery side of case respectively as follows: 8, 9, 10, 11, 12 and 13.

LORING, J. The contract of July 16th was a contract for the sale of 12 specific machines and not a contract for the sale of 12 machines of a particular description. By its terms it purports to be a present sale, but it was a sale of "twelve automatic time-table machines complete," and there was evidence that no one of the "six machines now standing in the shop of the Automatic Time-Table Company" was complete.

The bill of exceptions is somewhat obscure on this point. But as we interpret it there was evidence that apart from the Gordon batteries no one of these six machines was complete. We speak of the parts of the machine other than the Gordon batteries because it seems to have been the undisputed fact that as matter of practice these batteries were not put into the machines until they were set up for use on the premises of the purchaser or licensee, and setting up these machines on the premises of the plaintiff was not part of the obligation of the vendor under the contract here in question. It appeared that that was to be paid for by the vendee in addition to the purchase price named in the written contract.

The contract does not say that the "twelve automatic time-table machines" were complete, but it says that the defendant sells to the plaintiff "twelve automatic time-table machines complete." Evidence that the six here in question were in fact incomplete was admissible as one of the circumstances under which the contract was made and so one of the circumstances in the light of which it was to be construed.

Since something had to be done to the machines to put them in a deliverable state and a different intention did not appear, the property in the 6 machines here in question did not pass on the execution of the contract. The transaction was governed by the sales act (St. 1908, c. 237) and it is there so provided in section 19, rule 2. The rule was the same at common law. * * *

The defendant contends that the cases of Glover v. Austin, 6 Pick. 209, Glover v. Hunnewell, 6 Pick. 222, Sumner v. Hamlet, 12 Pick. 76, Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318, Mauger v. Crosby, 117 Mass. 330, and Whittle v. Phelps, 181 Mass. 317, 63 N. E. 907, are decisions to the contrary. Those are cases where it appeared that it was the intention of the parties to sell the chattel in its unfinished condition with an agreement by the seller to complete it; or in the language of St. 1908, c. 237, § 19, those were cases where a different intention did appear.

The contract of July 16th, therefore, was not a contract of present sale of six unfinished machines with an agreement on the part of the

defendant to complete them, but it was a contract to complete the six unfinished machines which on completion were to become the property of the plaintiff. * * * The bill of exceptions went no further than to state that the "fire greatly damaged the 6 machines standing in the defendant's premises." * * *

The learned counsel for the defendant misconceives the character of the action now before us when he contends that the plaintiff has not put himself in a position to sue on the footing that the contract is rescinded. This is not an action founded on the decision of the contract of July 16th, but it is an action on that contract to recover damages for the defendant's failure to complete the 6 machines which at the date of the contract were standng in its shop, and on completion of them to pass the title to the plaintiff. *

* *

SECTION 4.-FURTHER ILLUSTRATIONS OF THE

APPLICATION OF THE PRESUMPTION

An owner of hogs is fattening them for market. There is a contract to sell them when they are fattened. Does title pass at the date of the contract, if there is no other evidence of the intention of the parties? No; because the hogs are not in the condition. which the parties intend that they shall be in, at the time when the buyer is to take them. But suppose the buyer says, "What will you take for those hogs?" The seller names a price. The buyer adds, "They are not fat enough to take to market, but I will buy them anyway." They so agree. The hogs are stolen that night. The buyer has not paid the price. Must he pay? Yes; because the subject of the contract here is not "fattened hogs," but, on the contrary, the sale is of "unfattened hogs."

Where the contract is to sell logs to be cut, cotton to be ginned, wheat to be threshed, etc., in all these cases the parties have shown that they have in mind as the subject of the sale certain goods, then identified, but which are to be put in a different condition before the buyer is under any obligation. But the greatest of care must be exercised in examining the evidence, the circumstances of the case, custom, etc., to determine whether or not the parties, after all, intended to sell these identified goods in their present unfinished or incomplete condition. For certainly parties may buy and sell cotton which has not been ginned, or wheat not yet threshed or logs which have not yet been cut or sawed into lumber. Payment of the price is strong evidence that the parties intended title to pass to the goods in their incomplete condition. Other evidence may be equally strong, but neither will be conclusive. Another variation arises when the parties have agreed upon a sale of goods in an incomplete state, with the superadded obligation upon the seller to complete them. It is possible here that the obligation of the seller to complete the goods is a new obligation, based upon an entirely different contract-i. e., a contract by which the buyer employs the seller to do some work upon the buyer's own goods.

The opportunity for variation is indefinite, a fact which emphasizes the impossibility of isolating all conceivable situations in selling transactions and in laying down beforehand a rule of thumb by which all such cases may be decided. This cannot be done. The intention of the parties is the test and the parties may intend anything.

SECTION 5.-APPLICATION OF THE PRESUMPTION WHERE ACTS OF WEIGHING OR MEASURING MUST ALONE BE DONE TO ASCERTAIN THE AMOUNT OF THE PURCHASE PRICE

Suppose we are confronted with a contract to sell a stack of hay, or a pile of wood or coal, where the mass is identified and is in a deliverable state; that is, the parties have agreed to buy and sell that particular mass in its present state, not in some other condition, as would be the case if the contract called for baled hay, or wood sawed into specified lengths, or the coal screened. We have a case, therefore, where the presumption which we have been discussing should apply, and title would pass at the time the contract was made, unless the parties expressly agree that title shall pass at some later time. But suppose the parties do not know what quantity, measured in tons, cords, etc., is sold. They have agreed upon a sale of an identified mass, and they have agreed upon the price per unit of weight or measure, but they do not know what the total price will be. Query: Is the presumption that title passes at the time of the contract made inapplicable, simply because the amount of the purchase price has not been ascertained? The courts have not agreed upon this question. Most courts have held that title does not pass in such a case, provided the act of weighing or measuring was to be done by the seller. Where the act of weighing or measuring to ascertain the price was. by the contract, to be done by the buyer, the general rule was that the title passed at the time the contract was made. When the courts held that the title did not pass, if the seller was bound to weigh or measure the goods, they were not holding that the fact that the price was unascertained meant that the goods were not in a deliverable state, but they did say that it was just as sensible to suppose that the parties intended title not to pass until the goods were weighed or measured and the price fixed as it was to assume that, when goods at the time of the contract were not in 'the physical condition contemplated by the contract, the parties intended title not to pass until the goods were put in a deliverable condition; that is, there were two rules, similar, but not identical. Is it, after all, a fair assumption that the parties intend title not to pass until the price has been ascertained, the goods in all other respects being ascertained and in a deliverable state? The Sales Act has left out all mention of this question, the intention being

thus to change the rule of presumption. Probably, therefore, in all those states which have enacted the Sales Act, the former rule, that title did not pass when the goods were yet to be weighed or measured either by the seller or buyer, to ascertain price, has been changed, so that the special presumption that title passes upon execution of the contract to sell goods in a deliverable state applies.

SECTION 6.-PRESUMPTION THAT TITLE PASSES AT THE DATE OF THE CONTRACT IS APPLICABLE WHERE THE SALE IS A SALE ON CREDIT

The sale on credit is well understood. The legal effect of the transaction is that the seller intends to part with his ownership in the goods. Usually possession of the goods passes to the buyer, or the goods may in part be delivered to him. It is possible for the seller to remain in possession, title having passed. In such case the seller simply has possession of the buyer's goods. The seller is in very much the same situation that any bailor is in with respect to property in his possession. There is this difference: A seller in possession of goods already sold does have the power to sell to a third party, and thus to cut off the claim of the first purchaser, while a bailor does not have such power. This point will be taken up later.

The Sales Act expressly contemplates that the presumption that title passes at the date of the contract is applicable to sales on credit, because section 19, rule 1, provides that the presumption is applicable, "whether the time of payment, or the time of delivery, or both, be postponed." The sale on credit therefore, is a sale where the seller has intended to part with ownership. How is such intention manifested? This intention may be expressly or impliedly shown. A sale is never presumed to be on credit. Where wholesalers sell to retailers, it is very common for the invoice to state that the goods are sold on ten, thirty, or sixty days' time, etc. In such a case, of course, the intention that the goods are sold on credit is clearly shown. Frequently resort must be had to the course of dealing between the parties. This is another illustration of the importance of custom in business transactions. People do not always put into language everything that goes on in their minds with respect to a particular transaction. Each assumes that the other knows what he is thinking about. Time does not permit extended discussion. Where parties have had business relationships extending over considerable periods of time, their dealings have repeated themselves so often that it is not necessary to put all of their understandings into writing. Perhaps the majority of the obligations of the parties are not adverted to in the course of each new transaction. When controversy arises, their meaning can be discovered only by resort to the course of dealing.