SOMERVILLE, J.
— The sole question presented is, whether the alleged sale made by Terrell & Vincent of their stock of merchandise to the appellants, Shealy & Finn, was complete at the time the defendant Edwards, as sheriff of Talladega count}7, levied the attachment in favor of Iiardie, which occurred on December 12th, 1881. If so, the. property iu the goods had at this time passed to the vendees, and they were'no longer liable to be attached under legal process against the vendors.
The principle is often stated to be, that “ if any thing remains to be done by either party to the -transaction, before delivery — as for example to determine the price, quantity or identity of the thing sold — the title does not vest in the purchaser, but the contract is merely executory.” — Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10; Chitty on Contr. 299.
There seems to be no objection to this as a general proposition, but it must be limited to those cases where the evidence does not show an intention to malte the sale absolute and compílete, without any regard to the performance of theseUsual prerequisites, at least as to price and measurement. This rule, as suggested by Shaw, O. J., in Sumner v. Hamlet, 12 Pick. 76, 82, applies only to “cases of constructive delivery and constructivepossession; and the rule is resorted to for the purpose of determining when the contract of sale is so far complete as to pass the property, according to the intent of the parties in the contracts We take the true rule to be, as now established, that, if the goods are sufficiently identified, a complete sale of them may be made without fixing an absolute price, if such be the clear intention of the parties, as legally evinced by the circnmstances attending the sale.
This would seem a reasonable rule according to the principles of analogy adopted in all other cases. In the construction of contracts generally, it is a first and pervading principle, that the intention of the parties must govern, unless that intention [180]*180contravenes some established principle of law. The same rule is equally.dominant in construing wills. The primary purpose -is to ascertain the intention of the testator. We deem it of paramount importance in construing contracts of sale — a subject which is still involved in much confusion, notwithstanding the vast resources of learning expended upon it by the jurists and law-writers of the past century. This confusion is manifest in the two converse propositions, stated .by Mr. Parsons, each of which is obviously true: “ If the property passes, then it is a completed sale, and if a completed sale, then the property passes.” — 1 Parson’s Contr. 440. Hence, we sometimes have the unsatisfactory test applied, as to whether or not the goods, in case of loss by fire, wmuld be at the risk of the seller or buyer, thus presenting, as suggested by Mr. Hilliard in his work on Sales, a clear instance of the logical fallacy of a mere petitio prwicipii, or begging of the question. — Hilliard on Sales, p. 55, § 2.
The same writer, in discussing the particular subject under consideration, — that of intention and delivery, in the sale of personal property — states the general doctine to be, that, “ where any thing remains to be done by the seller of goods, as between him and the purchaser, before delivery, the latter acquires no complete, present right of. property ; at least without affirmative proof of an intent that he shall acquire such property.” “The rule,” he concludes, “is held to apply where either the property or price is unsettled.” — Hilliard on Sales, p. 190, chap. 9, § 1.
Mr. Addison, in his work on Contracts, holds the same doctrine. After stating the general rule, as to the necessity of fixing the price, and other prerequisites in executory sales, he observes: “ Moreover, if it appears by the terms of the contract that it was the intention of the parties that the property should pass to the buyer, it will pass, although the goods have still to be weighed, measured, or tested, 'provided the subject-matter of the sale is ascertained and identified; and there may be a complete contract so as to pass the property in the goods, although the price has not been definitely agreed on, or although the goods are still unfinished, or unweighed.” lie cites mun.erous cases in support of these several propositions.
Mr. Benjamin asserts it to be an unquestionable rule of law, that, even in executory contracts of sale, where no price is fixed for the goods - sold, the vendor is entitled to recover against the buyer for not accepting the goods. — Ben j. on Sales, § 85 ;Hoadly v. McLaine, 10 Bing. 482. So he says that if the price is to be fixed by agreement of appraisers, or of the parties, and the contract is in other respects executory, there is no sale without such agreement. “ But if the contract has been executed by [181]*181the delivery of the goods, the vendor would be entitled to recover the value estimated by the jury, if the purchaser should do any act. to obstruct or render impossible the valuation.” Benj. on Sales, § 87; Clarke v. Westrope, 18 C. B. 765; Wittskowsky v. Wasson, 71 N. C. 456.
In Boswell v. Green, 1 Dutcher (N. J.) 390, the same' question arose and was decided in accordance with these views. It was there held that the property to the goods could pass although they had .not been measured, or the aggregate price ascertained. “ Where it is clear, by the.terms, of the contract,” it was said by the court, “that the parties intended that the sale should be complete, before the article sold is weighed or measured, the property will pass before this is done.”
The case of Macomber v. Parker, 13 Pick. 175, cited by appellant’s counsel, was a case not unlike the present in some of its most important features. After laying down the general principle, as stated in Allen v Maury, 66 Ala. 10, the court say : “ But where the goods or commodities are actually delivered, that shows the intention of the parties to complete the sale by delivery, and the weighing, or measuring, or counting after-wards would not be considered as any part of the contract, but would be taken to refer to the adjustment of the final settlement as to the price. The sale would be as complete as a sale upon credit before the actual payment of the price.”
The actual delivery of the goods is of the greatest importance as evincing an intention to pass the property, so as to complete the sale. It wras held by this court in Morgan v. Smith, 29 Ala. 283, that the delivery of a bill of sale of personal property per se transferred the property, in the absence of countervailing circumstances, and such is the settled doctrine. Delivery is often said to be the primary and immediate duty of a vendor after the contract of sale is completed. The chief purpose is generally to effect a transmutation of property, and, if unaccompanied by explanation, the purchaser generally has a right to regard it as absolute. — Benj. on Sales, § 674; Upton v. Sturbridge Mills, 111 Mass. 453.
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SOMERVILLE, J.
— The sole question presented is, whether the alleged sale made by Terrell & Vincent of their stock of merchandise to the appellants, Shealy & Finn, was complete at the time the defendant Edwards, as sheriff of Talladega count}7, levied the attachment in favor of Iiardie, which occurred on December 12th, 1881. If so, the. property iu the goods had at this time passed to the vendees, and they were'no longer liable to be attached under legal process against the vendors.
The principle is often stated to be, that “ if any thing remains to be done by either party to the -transaction, before delivery — as for example to determine the price, quantity or identity of the thing sold — the title does not vest in the purchaser, but the contract is merely executory.” — Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10; Chitty on Contr. 299.
There seems to be no objection to this as a general proposition, but it must be limited to those cases where the evidence does not show an intention to malte the sale absolute and compílete, without any regard to the performance of theseUsual prerequisites, at least as to price and measurement. This rule, as suggested by Shaw, O. J., in Sumner v. Hamlet, 12 Pick. 76, 82, applies only to “cases of constructive delivery and constructivepossession; and the rule is resorted to for the purpose of determining when the contract of sale is so far complete as to pass the property, according to the intent of the parties in the contracts We take the true rule to be, as now established, that, if the goods are sufficiently identified, a complete sale of them may be made without fixing an absolute price, if such be the clear intention of the parties, as legally evinced by the circnmstances attending the sale.
This would seem a reasonable rule according to the principles of analogy adopted in all other cases. In the construction of contracts generally, it is a first and pervading principle, that the intention of the parties must govern, unless that intention [180]*180contravenes some established principle of law. The same rule is equally.dominant in construing wills. The primary purpose -is to ascertain the intention of the testator. We deem it of paramount importance in construing contracts of sale — a subject which is still involved in much confusion, notwithstanding the vast resources of learning expended upon it by the jurists and law-writers of the past century. This confusion is manifest in the two converse propositions, stated .by Mr. Parsons, each of which is obviously true: “ If the property passes, then it is a completed sale, and if a completed sale, then the property passes.” — 1 Parson’s Contr. 440. Hence, we sometimes have the unsatisfactory test applied, as to whether or not the goods, in case of loss by fire, wmuld be at the risk of the seller or buyer, thus presenting, as suggested by Mr. Hilliard in his work on Sales, a clear instance of the logical fallacy of a mere petitio prwicipii, or begging of the question. — Hilliard on Sales, p. 55, § 2.
The same writer, in discussing the particular subject under consideration, — that of intention and delivery, in the sale of personal property — states the general doctine to be, that, “ where any thing remains to be done by the seller of goods, as between him and the purchaser, before delivery, the latter acquires no complete, present right of. property ; at least without affirmative proof of an intent that he shall acquire such property.” “The rule,” he concludes, “is held to apply where either the property or price is unsettled.” — Hilliard on Sales, p. 190, chap. 9, § 1.
Mr. Addison, in his work on Contracts, holds the same doctrine. After stating the general rule, as to the necessity of fixing the price, and other prerequisites in executory sales, he observes: “ Moreover, if it appears by the terms of the contract that it was the intention of the parties that the property should pass to the buyer, it will pass, although the goods have still to be weighed, measured, or tested, 'provided the subject-matter of the sale is ascertained and identified; and there may be a complete contract so as to pass the property in the goods, although the price has not been definitely agreed on, or although the goods are still unfinished, or unweighed.” lie cites mun.erous cases in support of these several propositions.
Mr. Benjamin asserts it to be an unquestionable rule of law, that, even in executory contracts of sale, where no price is fixed for the goods - sold, the vendor is entitled to recover against the buyer for not accepting the goods. — Ben j. on Sales, § 85 ;Hoadly v. McLaine, 10 Bing. 482. So he says that if the price is to be fixed by agreement of appraisers, or of the parties, and the contract is in other respects executory, there is no sale without such agreement. “ But if the contract has been executed by [181]*181the delivery of the goods, the vendor would be entitled to recover the value estimated by the jury, if the purchaser should do any act. to obstruct or render impossible the valuation.” Benj. on Sales, § 87; Clarke v. Westrope, 18 C. B. 765; Wittskowsky v. Wasson, 71 N. C. 456.
In Boswell v. Green, 1 Dutcher (N. J.) 390, the same' question arose and was decided in accordance with these views. It was there held that the property to the goods could pass although they had .not been measured, or the aggregate price ascertained. “ Where it is clear, by the.terms, of the contract,” it was said by the court, “that the parties intended that the sale should be complete, before the article sold is weighed or measured, the property will pass before this is done.”
The case of Macomber v. Parker, 13 Pick. 175, cited by appellant’s counsel, was a case not unlike the present in some of its most important features. After laying down the general principle, as stated in Allen v Maury, 66 Ala. 10, the court say : “ But where the goods or commodities are actually delivered, that shows the intention of the parties to complete the sale by delivery, and the weighing, or measuring, or counting after-wards would not be considered as any part of the contract, but would be taken to refer to the adjustment of the final settlement as to the price. The sale would be as complete as a sale upon credit before the actual payment of the price.”
The actual delivery of the goods is of the greatest importance as evincing an intention to pass the property, so as to complete the sale. It wras held by this court in Morgan v. Smith, 29 Ala. 283, that the delivery of a bill of sale of personal property per se transferred the property, in the absence of countervailing circumstances, and such is the settled doctrine. Delivery is often said to be the primary and immediate duty of a vendor after the contract of sale is completed. The chief purpose is generally to effect a transmutation of property, and, if unaccompanied by explanation, the purchaser generally has a right to regard it as absolute. — Benj. on Sales, § 674; Upton v. Sturbridge Mills, 111 Mass. 453. If there be accompanying declarations, showing an intention to pass the property to the vendee, as in this case, immediately and .not at some future time, the fact of delivery, as' evidence .of intention, becomes manifestly the most cogent of ail legal proofs, where the good faith of the transaction is not impugned for fraud.
The rule as to price, in executory contracts of sale, is generally said to be, that it must be certain, or capable of being made certain. Such is.undoubtedly the settled doctrine, and although, in such case, if the agreement be that it is to be fixed by arbitration, the sale must be considered void if the arbitrators fail to agree, a different principle prevails whence the cont/ract [182]*182of sale is complete and executed. In the latter class of contracts, where the seller, whether by actual delivery or other like unequivocal act, intentionally passes the property in specific goods to the purchaser, without fixing the price, the law leaves the price to be adjusted by the agreement of the parties, or, if they fail to agree,' by the verdict of a jury. If such price is left open for future adjustment by consent, the property being delivered with the expressed intention to complete the sale, the price to be agreed on is implied to be one that is fair and reasonable, and this is always the rule of recovery on a quantum meruit, or quantiom valebat. If there should or can be no mutual consent, the implication follows, as part of the original contract of sale, that a jury will adjust it, just as manifestly as in every day sales and delivery of goods by merchants on open account, where the price is very often not adjusted for months afterwards. — Benj. on Sales, § 87; Valpy v. Gibson, 4 C. B. 837; Macomber v. Parker, 13 Pick. 175.
The present case is a stronger one than the above rules would seem to require, in order to constitute an absolute and complete sale. The goods were actually delivered by the sellers to the purchasers. The delivery was accompanied by a declaration of the sellers — showing añ intention to •pass the property to the purchasers — “ Now the goods are yoursThe purchasers took possession and exercised dominion over the property as their own, continuing the sale of the goods on their own account during an entire day before the levy of the writ of attachment. The notes of the purchasers were given for the estimated price of the goods, which aggregated a fixed sum, §275(1.00. It is true, that it was agreed that this price should be changed, being more or less, according as the actual valuation of the goods might be fixed by the contracting parties on the Monday following the transaction, and it never was fixed because of the interruption occasioned by the levy of the attachment. We are clear in the view that these facts, without any rebutting circumstances, would constitute an executed contract of sale.
There is evidence in the record which tends to impugn the good faith of the transaction, but the question of fraud is not raised by any ruling of the court, or assignment of error.
The rulings of the court excepted to were not in accordance-with the views expressed in this opinion, and the judgment must, therefore, be reversed and the cause remanded.