incident to that business, he was accustomed to receive into his mill from farmers, for storage, wheat, until such time as they desired to sell it, issuing to them therefor the usual storage or warehouse tickets. In 1880 twenty-five persons so stored wheat with him; in 1881, twenty-one; in 1882, four; in 1883, two. He never sold, delivered, or shipped wheat out of his mill, or redelivered any wheat left with him for storage, but all wheat thus received into his mill he ground up, using it as a part of his current stock in his business of milling. In April 1882, he borrowed $5000 from the First National Bank of Winona, for which he gave his note, and at the same time executed and delivered to the bank the following instrument: "Received in store, for account of First National Bank of Winona, 5000 bushels of No. 2 wheat, deliverable to them or their order on return of this receipt: provided, always, that if a certain note, bearing even date, and due July 9, 1882, for $5000, shall have been paid, this receipt is null and void, otherwise in full force." In May 1882, he had a precisely similar transaction with the Second National Bank, except that the loan was $3000, and the instrument in the form of a receipt which he gave, did not contain the proviso contained in the other. Neither loan was ever paid. These instruments were, and by all parties were intended to be collateral security for the repayment of these loans, and for no other purpose. Otherwise than as above stated, Cole never sold any wheat to these banks, nor did the banks ever store any wheat with him, or ever deliver any wheat to him, and never had any wheat in his possession. Between August 2 and 8, 1882, the mill was entirely cleaned out of wheat, so that on the 8th of August there was no wheat of any kind in the mill that had been placed there prior to to that date, the whole having been ground into flour in the usual course of operating the mill.

The court does not find, and there was no evidence tending to prove, that there was any wheat in the mill at the date of either of these transactions with the banks. The wheat found in the mill at Cole's death, which is the wheat here in controversy, was purchased by him from defendants, Van Dusen & Co., and others, subsequent to August 8th 1883. It seems to us that to state these facts is to prove that the banks cannot maintain their claim to this wheat. The act of 1876, commonly known as the "Warehouse Act," (Gen. Laws 1876, c. 86, or Gen. St. 1878, p. 1012), has no application to such transactions. The banks never actually deliv

wheat ered any wheat to Cole for storage. They never bought any of him, and he never sold them any. All that can be possibly claimed is that he executed these receipts for the purpose of pledg ing or mortgaging his own wheat to the banks as security for his own debt. Now the act above cited, as its title and contents clearly indicate, was designed to protect the rights of actual depositors-those who deliver grain to another for storage. The act is too long to quote in extenso, but its language throughout shows that this was its exclusive scope and purpose. The very first expression in the first section furnishes the key to the whole act, viz.: “Whenever any grain shall be delivered for storage.' Such expressions as "whenever any grain shall be deposited," "the person so storing," "the amount of grain so stored," "the terms of storage," "charges for storage," and like expressions, are to be found all through the act. But aside from the strict letter of the act, its provisions as a whole, the evil sought to be removed, and the remedy sought to be applied, clearly show that it was never in the legisla tive mind that it should apply to transactions where there was in fact no deposit of grain for storage, but simply an attempt by a party to pledge or mortgage his own property in his own possession to secure his debt. To extend its application to such transactions would practically result in important modifications of the law of pledges and mortgages of personal property,-a thing not to be presumed to have been contemplated by the legislature. We do not mean to say that a vendor may not become the bailee of the vendee, so as to bring the transaction within the statute. It might with force be claimed that there would be no substantial reason for requiring the parties in such a case to go through two ceremonial deliveries. But that is not this case. To bring a case within the provisions of this statute there must be a delivery by an actual depositor. See Greenleaf v. Dows, 8 Fed. Rep. 550; Adams v. Merchants' Bank, 2 Fed. Rep. 174.

Therefore, in our judgment, this statute has no application to the present case, and hence the rights of the banks must be determined according to common-law principles alone. If these transactions amounted to anything, it was either as a pledge or a mortgage. For the purposes of this case it is immaterial which it be called. One of the counsel for the banks avoids stating which of the two he claims to be. The attorney of record claims it was a pledge. We are inclined to think it was an attempt to create a

pledge; and as that is the view most favorable to the banks, we shall consider the case from that standpoint.

We shall assume (without deciding the question) that a warehouseman, having property of his own in his warehouse, may pledge it as security for his own debt by merely issuing to his creditor an instrument in the form of a warehouse receipt. This is, certainly, as far as any authority goes. We will also assume that Cole was, within the meaning of the authorities, a "warehouseman," which we very much doubt. But conceding these, still there never was any executed contract of pledge, because no specific property was ever appropriated to the contract so as to pass title to the pledgee.

It is an elementary principle of law, applicable alike to sales, mortgages and pledges, that the contract becomes executed only by specifying the goods to which it is to attach; or, in legal phrase, by the appropriation of the specific goods to the contract. Until this is done the contract is executory, and the property does not pass. There was no such appropriation of any specific grain to these contracts, even under what may be termed the modern American doctrine, that where the mass, from which the sale, mortgage or pledge is made, is uniform in character and quality, as wheat in an elevator, separation from the mass is not necessary to constitute an appropriation of the property to the contract. But in this case, out of what mass was this wheat to be taken? There is no evidence that there was any wheat in the mill when these receipts were executed, and if there was, there is nothing to show that it was the wheat referred to. So far as appears, the banks might with equal propriety claim any other wheat situated elsewhere. But even if it be further conceded that there was, at the dates referred to, wheat in the mill, and that this was the wheat referred to in the receipts, yet there is still a conclusive reason why the banks cannot recover. As found by the court, Cole was accustomed to use all the wheat in his mill as a part of his stock in the milling business, grinding it into flour, which he shipped and sold. This appears to have been his usual and long-continued practice. In view of this fact, and also the well-understood usages of the grain trade as to the time within which it is ordinarily marketed, it could never have been in the contemplation of the parties that Cole would keep this wheat on hand from the spring of 1882 until the late summer of 1883. The banks must have underVOL. XXXIII.-65

stood that Cole would, and tacitly assented that he might, use and grind up this wheat, and ship and sell the flour. The most that can be claimed for the transaction is that he was, on demand, to deliver to the banks out of his stock an amount of wheat corresponding in quantity and grade to that named in the receipts. Even if they had actually deposited their own wheat with Cole, under such circumstances, it hardly needs the citation of authorities at this day to the proposition that it would have, in the absence of a statute, constituted a sale and not a bailment. The very object of the statute already considered was to change the rule in this regard as to actual depositors. See Rahilly's Case, 3 Dill. 420; Chase v. Washburn, 1 Ohio St. 244; South Australian Ins. Co. v. Randell, L. R., 3 P. C. App. 101.

No case to which we have been referred goes far enough to support the claim of the banks on the facts of this case. In almost all of them we think it will be found that not only was specific property appropriated to the contract, but the identity of the subject of the pledge was preserved. Merchants' Bank v. Hibbard, 48 Mich. 118, which takes quite advanced positions on some questions, comes nearer supporting the claim of the defendants than any case we have found. But the identity of the property pledged with that claimed seems to have been assumed or taken for granted. On no other theory, we think, could the result in that case have been reached. In the case at bar, all wheat in the mill had been removed between August 2d and 8th, and the wheat in dispute purchased by Cole subsequent to the latter date. Our conclusion is that the banks have no title to the wheat, and have no right to any preference over other creditors of the estate in the distribution of its proceeds. Judgment affirmed.

The principles stated in the opening sentences of the opinion, that the law presumes a sale to be for cash when nothing is said to the contrary, and that upon a sale for cash, payment and delivery are concurrent and mutually dependent acts, are well recognised. But the condition of payment may be waived. In Scudder v. Bradbury, 106 Mass. 422, 428, the trial judge instructed the jury, "that a cash sale might or might not be a conditional sale; that it was not necessarily in law either a conditional or an

unconditional sale; and that it was for the jury to determine upon the evidence whether the sale was conditional or not." This ruling was sustained by the Supreme Court of the state, as applied to the facts of the case, in which the sale was accompanied by a delivery. Such language is confusing. When a sale is made for cash, the right to demand the money immediately upon delivery, and to reclaim the goods if the money be not forthcoming, always exists; but, of course, if delivery is voluntarily made without pay

ment being insisted on, and without being induced by artifice or fraud, the condition is waived.

If the terms are "cash in ten days" it is evident that payment is not expected to be concurrent with delivery, and upon an absolute delivery there is no right to reclaim the goods if the payment be not made at the expiration of the ten days: Haskins v. Warren, 115 Mass. 514.

It is very necessary to distinguish sales for cash from sales on condition that the title shall not pass until the price is paid. In many of the states such conditional sales are recognised and held valid even as to innocent third parties, while in others they are held void as to creditors of the vendee and bona fide purchasers from him. See Lewis v. McCabe, 21 Am. L. Reg. (N. S.) 217, and note. The law in regard to cash sales seems to be universal. And it is evident that the vendor, in the case of a cash sale, who has made a contract entitling him to payment as soon as his goods are delivered, should not be allowed, after waiving the condition of immediate payment, and trusting for his money to the personal credit of the vendee, no matter how soon his mistake is discovered, to turn around and contend that he made the delivery on condition that the title would not pass until the price was paid; even though the law of the state in which the transaction occurred would have permitted him to make such a contract instead of the contract he did make. See the dissenting opinion in Hammett v. Linneman, 48 N. Y. 406. But it is of course possible that upon the vendor coming to the vendee in the case of a cash sale and learning that payment will not follow delivery, the contract between them may be abandoned, either expressly or by implication, and another entered into by which delivery is to be made at once, the title is not to pass until payment of the price. See Nash v. Weaver, 23 Hun 516.

but

Many cases on this subject are collected

in note (d) to sect. 320 of the Fourth American ed. of Benjamin on Sales. See also Evansville, &c., Rd. Co. v. Erwin, 84 Ind. 457.

On the question of the necessity of separation in the case of a sale of a portion of a homogeneous mass, a late case in New Jersey, which was differently decided by the Supreme Court and the Court of Errors and Appeals, was reported each time in the pages of this magazine, and each time with a note opposed to the decision: Hires v. Hurff, 17 Am. L. Reg. (N. S.) 11, and Hurff v. Hires, 18 Id. 161. The recent date of these discussions and their fulness, render it unnecessary to take up here that general question.

In the principal case the question was as to the pledge, by means of what purported to be a warehouse receipt, of a portion of a mass, of uniform character and quality, by the owner, a miller, and it was decided that his retained power over the wheat in question was so extensive as to be inconsistent with there having been any pledge of it.

Under the facts of the case probably no fault will be found with the decision, although it may be said that it might preferably have been put on the ground that Cole was not a "warehouseman ;" Cole's course of business was such that his depositors could not have considered him under any obligation to keep on hand wheat of such kind and quantity as to answer all his outstanding receipts, and therefore a deposit with him must be looked upon as a sale and not a bailment; but so far as the opinion states or implies that the right of the warehouseman to substitute for the wheat deposited, wheat of like quality, keeping on hand always the requisite quantity, will make the transaction a sale and not a bailment, it is not in accordance with what would seem to be the better doctrine. See the elaborate note of Mr. (now Judge) HOLMES, to Chase v. Washburn,