Willis: Anglo-American Law 
119 
Sales. The law of sales is largely a development of this 
period, and the great problem for the courts was to deter- 
mine when facts constituted a sale and when only a contract 
to sell, that is, when the title would pass. Was the ascertain- 
ment of the price a condition precedent? At first the Eng- 
lish courts held that title could be transferred only by deliv- 
ery and payment. Then they adopted the reciprocal grant 
doctrine, whereby they held that title might pass without de- 
livery and payment if credit was given. Finally they held 
that title would pass according to the intention of the parties, 
whether or not credit was given (which shows the influence 
of the theories of individualism and liberty of the time) . But 
suppose something remained to be done to ascertain the price, 
did that indicate an intention not to have the title pass? In 
the case of Hanson v. Meyer , 37 this was at first answered in 
the affirmative as an absolute rule. Later, in the case of 
Turley v. Bates , 38 this was qualified by confining the rule to 
an unascertained price to be fixed by the seller, and the Eng- 
lish Sales of Goods Act so fixed the law. In the United States 
some courts followed Hanson v. Meyer and some Turley v. 
Bates, and some did away with the presumption of retention 
of title because something remained to be done to ascertain 
the price. 
Where something other than the ascertainment of the price 
remained to be done to the goods by the seller to put them 
in deliverable shape, all courts were agreed that the title 
would not pass until such thing was done. But would the 
title pass at once in the sale of a specified quantity from a 
larger uniform mass? The English courts in the case of 
Whitehouse v. Frost 39 at first answered, Yes; but this case 
was overruled by later cases, in spite of the fact that the same 
courts recognized tenancy in common in the case of confusion 
of goods. A New York court held in the case of Kimberly 
v. Patching that the title would pass if the parties so in- 
tended, and this became the prevailing doctrine in the United 
States. At first it was doubted that the parties would be 
tenants in common, but later it was held that they were ten- 
ants in common with the right of severance in the case of 
37 6 East 614 ( 1808 ). 
38 2 H. and C. 200 ( 1863 ). 
39 12 East 614 ( 1810 ). 
40 19 N.Y. 330 ( 1859 ). 
