[1919] 1 K.B. 459
Divisional Court
Where on a sale of unascertained goods by description goods of that description and in a deliverable state are unconditionally appropriated to the contract by the seller, and the seller sends notice of that appropriation to the buyer, in the event of the buyer neglecting to reply to that notice promptly it must be inferred that he assents to the appropriation, and on the expiry of a reasonable time after receipt of the notice the property must be deemed to have passed.
Rowlatt J
'This was an action for damages for non-delivery of 15 bags of rice sold by the defendants to the plaintiff. The defence was that the goods had been stolen without default of the defendants after the property had passed to the plaintiff. The county court judge held that the theft was not due to any negligence of the defendants, but he gave judgment against them on the ground that the property had not passed. The contract was held by the judge upon the evidence to be for 140 bags of rice, unascertained at the time of the sale, of which delivery was to be taken by the plaintiff in 14 days, the contract having been made on or about February 12, 1918. The contract being silent as to the time of payment, it is to be taken that this was to be against delivery. On February 20 the defendants wrote to the plaintiff stating that the 14 days were up on the following day. The plaintiff replied on February 27, sending a cheque, and asking for a delivery order as arranged. On February 28 the defendants sent a delivery order for 125 bags which were lying at the wharf of a third party, and a receipt for the cheque. With regard to the remaining 15 bags the letter reads as follows: "The bags at the above place" - meaning 50 Long Acre, from which the letter was written - "are ready for delivery, and shall be pleased if you can send for them at once as we are very short of room." The evidence was that there were only 15 bags at Long Acre, though the plaintiff did not admit this. The plaintiff did not send for the 15 bags in response to this letter, and two other letters - namely, on March 6 and March 12 - asking them to do so were found by the judge to have been written and posted by the defendants, but he said it was not proved that they were received. Matters still remaining in this position, the 15 bags were stolen towards the end of March. Under the above contract it would be the duty of the sellers to appropriate the goods to the contract; and if such appropriation were assented to, expressly or impliedly, by the buyer the property would have passed. When they received the cheque for the goods and were asked for a delivery order it was right and proper for them to appropriate and place at the disposal of the buyer the goods for which he thus paid in order to effectuate a delivery or its equivalent concurrently with the receipt of the money. They did send a delivery order for the goods at Chambers' Wharf, and as to the 15 bags, told the plaintiff that they were ready, and asked that they should be taken away. It might well be contended that not only as regards the goods covered by the delivery order, but also as regards the goods at the defendants' own premises which they thus told the plaintiff were ready to be taken away in response to the plaintiff's request for a delivery order, there was an appropriation to which by asking for the delivery order the plaintiff had assented in advance. We do not think it necessary to decide this, because we think there was what amounted to an assent subsequent. If the plaintiff had replied saying that he would remove the goods the case would be precisely the same as Rohde v Thwaites. The plaintiff, however, did nothing for a month, and the question is what is the effect of that? If the goods were of the required quality it is difficult to see how the plaintiff could have dissented from the appropriation. He could not object to the place from which he was required to fetch them, because he had inspected rice lying at those premises at the time and for the purposes of this very contract. For the same reason it is not easy to see how he could have objected to their quality unless there happened to be some bags inferior to those which he had inspected. At any rate, he made no objection at all. Now it is obvious that if he make any objection he ought to do so promptly, because he could not place upon the vendors the risk involved in the continued possession of these goods, nor prolong the encumbrance of the vendors' premises. As he chose merely to say nothing for a whole month in response to an appropriation made in consequence of his own letter, we think that comes to precisely the same thing as if he had written saying he would remove them and did not. The learned judge said that there was no evidence of an appropriation with the assent of the buyer. He could only say this if he was looking for an express assent. As the assent may be implied we think that there was not only evidence of it but that it is the only inference possible upon the facts. For these reasons the appeal must be allowed, and judgment entered for the defendants…'