Contracts. The transmitting the possession of a thing from one person into the power and possession of another.
2. Originally, delivery was a clear and unequivocal act of giving possession, accomplished by placing the subject to be transferred in the hands of the buyer or his avowed agent, or in their respective warehouses, vessels, carts, and the like. This delivery was properly considered as the true badge
of transferred property, as importing full evidence of consent to transfer; preventing the appearance of possession in the transferrer from continuing the credit of property unduly; and avoiding
uncertainty and risk in the title of the acquirer
3. The complicated transactions of modern trade, however, render impossible a strict adherence to this simple rule. It often happens that the purchaser of a commodity cannot take immediate possession and receive the delivery. The bulk of the goods; their peculiar situation, as when they are deposited in public custody for duties, or in the hands of a manufacturer
for the purpose of having some operation of his art performed upon them, to fit them for the market the distance they are from the house; the frequency
of bargains concluded by correspondence
between distant countries, and many other obstructions, frequently render it impracticable to give or to receive actual delivery. In these and such like cases, something short of actual delivery has been considered sufficient to transfer the property.
4. In sales, gifts, and other contracts, where the party intends to transfer the property, the delivery must be made with the intent to enable the receiver
to obtain dominion over it. 3 Serg. & Rawle, 20; 4 Rawle, 260; 5 Serg. & Rawle, 275 9 John. 337. The delivery may be actual, by putting the thing sold in the hands or possession of the purchaser; or it may be symbolical, as where a man buys goods which are in a room, the receipt
of the keys will be sufficient. 1 Yeates, 529; 5 Johns. R. 335; 1 East, R. 192.; 3 Bos. & Pull
. 233; 10 Mass. 308; 6 Watts & Serg. 94. As to what will amount to a delivery of goods and merchandise
, vide 1 Holt
, 18; 4 Mass. 661; 8 Mass. 287; 14 Johns. R. 167; 15 Johns. R. 849; 1 Taunt. R. 318 H. Black. R. 316, 504; 1 New R. 69; 6 East, R. 614.
5. There is sometimes considerable difficulty in ascertaining the particular period when the property in the goods sold passes from the vendor to the vendee; and what facts amount to an actual delivery of the goods. Certain rules have been established, and the difficulty is to apply the facts of the case.
6. - 1. Where goods are sold, if nothing remains to be done on the part of the seller as between
him and the buyer, before the article is to be deliver-ed, the property has passed. East, R. 614; 4 Mass. 661; 8 Mass. 287 14 Johns. 167; 15 Johns. 349; 1 Holt's R. 18; 3 Eng. C. L. r. 9.
7. - 2. Where a chattel is made to order
, the property therein is not vested in the quasi
vendee, until finished and delivered, though he has paid for it. 1 Taunt. 318.
8. - 3. The criterion to determine whether there has been a delivery on a sale, is to consider whether the vendor still retains, in that character, a right over. the property. 2 H. Blackst, R. 316.
9. - 4. Where a part of the goods sold by an entire contract
, has been taken possession of by the vendee, that shall be deemed a taking possession of the whole. 2 H. Bl. R. 504; 1 New Rep. 69. Such partial delivery is not a delivery of the whole, so as to vest in the vendee the entire property in the whole, where some act, other than the payment of the price, is necessary to be performed in order to vest the property. 6 East, R. 614.
10. - 5. Where goods are sent by order to a carrier
the carrier receives them as the vendee's agent. Cowp. 294; 3 Bos. & Pull. 582; 2 N. R. 119.
11. - 6. A delivery may be made in a very slight manner; as where one buys goods which are in a room, the receipt of the key is sufficient. 1 Yeates, 529; 5 Johns. 335; 1 East, R. 192. See, also, 3. B. & P. 233 7 East, Rep. 558; 1 Camp. 235.
12. - 7. The vendor. of bulky articles is not bound to, deliver them, unless he stipulated to do so; be must give notice
to the buyer that he is ready to deliver them. 5 Serg. & Rawle, 19; 12. Mass. 300; 4 Shepl. Rep. 49; and see 3 Johns. 399; 13 Johns. 294; 19 Johns. 218; 1 Dall. 171.
13. - 8. A sale of bricks in a brick-yard, accompanied with a lease of the yard
until the bricks should be sold and removed, was held to be valid against the creditors of the vendor, without an actual removal
. 10 Mass. 308.
14. - 9. Where goods were contracted to be sold upon condition that the vendee should give security for the price, and they are delivered without security being given, but with the declaration on the part of the vendor that the transaction should not be deemed a sale, until the security should be furnished; it was held that the goods remained the property of the vendor, notwithstanding
the delivery. But it seems that in such cases the goods would be liable for the debts of, the vendee's creditors, originating after the delivery; and that the vendee may, for a bona fide
consideration, sell the goods while in his possession. 4 Mass. 405.
15. - 10. Where goods are sold to be paid for on delivery, if, on delivery, the vendee refuses to pay for them, the property is not divested from the vendor. 13 Johns. 434; 1 Yeates, 529.
16. - 11. If the vendor rely on the promises
of the vendee to perform the conditions of the sale, and deliver the goods accordingly, the right of property
. is changed; but where, performance and delivery are understood to be simultaneous
, possession, obtained by artifice, will not vest a title in the vendee. 3 Serg. & Rawle, 20.
17. - 12. Where, on the sale of a chattel, the purchase money
is paid, the property is vested in the vendee, and if he permit it to remain in the custody of the vendor, he cannot call upon the latter for any subsequent loss or deterioration
not arising from negligence
. 2 Johns. 13; 2 Caines, R. 38 3 Jolins. 394.
18. In order to make a good donatio mortis causa
, it is requisite that there should be a delivery of the subject to or for the donee
, where such delivery can be made. 3 Binn. R. 370; 1 Miles, Rep. 109, 110; 2 Ves. Jr. 120; 9 Ves. Jr. 1.
19. The delivery of the key of the place where
bulky goods are deposited, is, however, a sufficient delivery of such goods. 2 Ves. Sen
. 445. Vide 3 P. Wms. 357; 2 Bro. C. C. 612; 4 Barn
. & A. 1; 3 Barn. & C. 45 Bouv. Inst. Index, h. t. See Sale; Stoppage in transitu
; and Domat, Lois Civiles, Liv. 1, tit. 2, s. 2 Harr. Dig. Sale, II. 3.