28 CONTRACTS CONCERNING HORSES, ETC. 



Memorandum written in the buyer's book, drawn up and 

 signed by a person, who is the agent of the seller only, 

 although this was done at the request of the buyer, will 

 not bind him (r). 



DELIVERY AND PAYMENT. 



Rights of The right of property and the right of possession are 



possesswn^'^ distinct from each other ; the right of possession may be 

 in one person, the right of property in another (s). For 

 by the law of England, possession is not proof of pro- 

 perty (/). It is, at the same time, presumptive proof of 

 ownership, and may be acted on as such {ii). 

 Executed and "When the contract is executed, the possession and the 

 contract^s"^ right are transferred together; where it is executori/, the 

 right only vests, and the reciprocal property is not in 

 possession, but in action ; for a contract executed (which 

 when it relates to an exchange or sale of goods differs in 

 nothing from an assignment) conveys a chose in possession, 

 a contract executory/ conveys only a chose in action (x). 

 Property may It is clear that by the law of England the sale of a 

 deUvery °^^ specific chattel passes the property in it to the vendee 

 without delivery (y) . Even in this case, however, if the 

 contract show that there is no intention to pass the pro- 

 perty until something be done by the seller, either in 

 order to prepare the goods for delivery, or for the purpose 

 of ascertaining the price, the sale is not perfected, and the 

 property does not pass until that thing is done (;:). 

 Wliat immc- To constitute a sale which shall immediately pass the 

 diatcly passes property, it is necessary that the thing sold should be 

 ascertained in the first instance, and that there should be 

 a price ascertained or ascertainable (ci) . So that there may 

 be a sale of a specific chattel, which shall immediately pass 

 the property, even though the price may have to be after- 

 wards ascertained (b). 

 Condition as Where, in an agreement of sale, a condition as to the 

 tainable^^^^'^" V^^^^ ^^ annexed, and the fulfilment of it is ascertainable, 



(;•) Graham v. Musson, 5 Bing. (//) See per Parke, J., Dixon v. 



N. C. 603. And see Miirphi/ v. Yates, b B. & Adol. 340 ; Buddie v. 



Boesc, L. R., 10 Ex. 126 ; 44 L. J., Green, 27 L. J., Ex. 33. 



Ex. 40 ; 32 L. T., N. S. 122. {-) Chitty on Contracts, lOth ed. 



(.?) Tarling v. Baxter, 6 B. & C. S48. 



364. {a) Judgment of C. P., Logan v. 



{t) See per Best, C. J., WiUiams Le Mcsurier, 11 Jur. 1094. 



V. Barton, 3 Bing. 145. {h) See Logan v. Lc Mesiirier, 11 



lu) Webh V. Fox, 7 T. R. 397 ; Jur. 1091 (C. P.) ; Chit. Contr., 



Fy'son v. Chambers, 9 M. & W. 460. 10th cd. 316. 



(z) 2 Steph. Com. 50. 



