A very common form of contract at the present day is a sale of goods "to arrive. " This is a sale of merchandise expected from abroad, effected before arrival, the condition being that the thing sold shall arrive, and that if it do not, the bargain shall be void.

Upon the question whether under such a contract there is a present and executed sale, subject to be defeated by the non-arrival of the goods, or only an executory contract to sell and

(i) Durrell v. Evans, 6 H. & N. 660. The plaintiff having hops for sale, sent samples to a hop factor in London to sell them. The defendant saw the samples at the factor's and inquired the price. Subsequently he met the owner at the factor's and offered him a certain price for the hops, which the owner, upon the advice of the factor, accepted. The factor at once made out bought and sold notes which he gave to the parties, and upon request of the defendant altered the date of the bought note handed to him. A time was then appointed for the hops to be sent up from the country and weighed, and the defendant caused the samples to be sent to his store. When the hops were weighed, the plaintiff and defendant were present, and upon some dispute about the weight, and objection to the condition of the hops, which the defendant pronounced to he unsalable, he refused to perform the contract, or to accept the hops. The article had fallen in price considerably at that time. The plaintiff sued the defendant for non-performance of the contract, and the question was reserved for the Court of Exchequer, whether the bought note signed by the factor was a sufficient memorandum in writing to bind the defendant That court decided that it was not. Pollock, C. B., in agreeing with the rest of the court that the rule for a non-suit should be made absolute, says: "At the trial I thought it right to reserve the defendant leave to move upon it, and let the matter be discussed. The defendant did not sign the note, nor was it signed by any one fur him, or on his behalf, and the defendant's subsequent conduct amounts to nothing, because a party doe9 not adopt and ratify that which was not originally done on his behalf. If the required act was not originally done on his behalf, he cannot be afterwards legally bound or said to have adopted it. The factor here was the agent of the seller only, and not of the buyer at all." buy, there has been much discussion; but the authorities are strongly in favor of the latter view. Where however the quantity, quality, and price of the goods are specifically ascertained, and the bill of lading thereof is assigned by indorsement and delivery to the purchaser under a contract of this kind, we think that the general principles of the law-merchant would lead to the conclusion that there was a constructive delivery and executed sale, and that the right of property passed. (k) And if any other act of equivalent import to the assignment of a bill of lading, be performed, as an assignment upon the back of the invoice, the transfer of a policy of insurance upon the goods, and the giving an order on the vessel to deliver to the purchaser on arrival, the effect might be the same. (/) But this conclusion must be subject to important qualifications. Perhaps rules analogous to those which give and govern the right of stoppage in transitu, might be held applicable. If, for example, the purchaser becomes insolvent before the arrival, we cannot suppose that his assignees could take the goods without paying or securing the price agreed upon. (m) But they might take them by so doing, and make what profit they could out of them, for the benefit of the insolvent estate. We reach the same result by simply supposing that the constructive delivery above spoken of did not terminate the common-law lien of the vendor for his price.

In all cases of this kind, the intention of the parties, as gathered from the contract and the attending circumstances, will govern; and if from these it be apparent that the property was to pass immediately, the courts will so construe the contract; for no particular form is required for the sale of personal property. All that is necessary is, that the parties should intend, the one, to part with his property, the other, to become the owner of it.

(k) Alexander v. Gardner, 1 Bing. N. C 671; 1 Scott, 630; 1 Hodges, 147. In this case the plaintiff made a contract in London to sell to defendant butter which he expected from Sligo, Ireland, and the quality and price were specified by the contract. The goods were shipped on a specific day; the defendant having accepted the invoice and bill of lading. It was he/d, that the property in the butter had passed to the defendant, and that though the goods were lost by shipwreck, the price might be recovered of the defendant in an action for goods bought and sold. - Caldwell v. Ball, 1 T. B. 205; Stubbs v. Lund, 7 Mass. 453; Walter v. Boss, 2 Wash. C. C 283; Jordon v. James, 5 Ham. (Ohio) 89; Lee v. Kimball, 45 Me. 172.

(0 Gardner v. Howland, 2 Pick. 599; Howland v. Harris, 4 Mason, 497; in this case the original cargo was assigned to the plaintiff, while at sea, by the owner, bona fide in payment and satisfaction of a pre-existing debt, and the return cargo, which was the proceeds of the original, was attached by the U. S. Marshal for duties then owing to the government by the assignor upon a former importation. It was held, that the assignment passed a constructive possession to the vendee, sufficient to enable him to maintain trespass against a wrong-doer. Per Story, J. -Pratt v. Parkman, 24 Pick. 42; Lanfear v. Sumner, 17 Mass. 110.

(m) Benedict v. Field, 16 N. Y. 595.

The union of intention constitutes the contract of Bale. And it may be proved by any kind of legal evidence, parol or written; by a formal conveyance under seal, or by a loose correspondence; by a conversation direct between the parties, or mediate through the agency of other persons. (n)