Bankruptcy-Growing crops-Title where under agreement for sale
Contract=Offer and acceptance-Communication of acceptance-Conduct of
the parties

Reception-s-Sale of goods-English and Egyptian law relating to the passing of
property-Egyptian law relating to contracts for the sale of cotton

Sale of Goods-Growing crop=-Whethersale or agreement to sell

Sale of Goods-Passing of property-Moment at which property passes under o·
contract for the sale of growing crop-Effect of purchaser's knowledge that
vendor has no power of disposal over whole crop=Subsequent acquisition of
power of disposal

S. and V. Hakim were in partnership with one Trambellis as regaroa
certain cotton plantations in Soba and Gezira. V. Hakim, while in Alexan-
dria, offered by a letter dated October S, 1924. to sell all the cotton froD)
the .above mentioned plantations to the Egyptian and Sudan Cotton Trad- ing Co.                                                                                                           .

The terms on which the sale was to be made were stated .iJ;t the Jet-
ter. It was. however. known to both parties that the cotton referred to was
not yet ready to be picked and that, although V. Hakim had the' authority
of S. Hakim. he did not have the authority of Trambellis, the third partner.,
to sell all the crop. It was therfore agreed that if Trambellis refuse4 his
consent, his share should be brought by the Hakims.

Trambellis did in fact, refuse his consent and the Hakims finally p.

----,----

• 'Court: R. H. Dim C.J .• Peacock and N. Davidson J.

him to agree to sell his share to them. As soon as this was done the
Hakims obtained from the company an advance of .£ E.2,oOO.

Before any substantial part of the crop was delivered to the company •

. the Hakims went _ bankrupt. The company 'then claimw,liS against the re-
ceiver, that they were entitled both to the picked and unpicked cotton from
the Soba and Gezira plantations, because the property in the whole crop
was transferred to them either on October 5, when the letter was written,
or on the payment of the £E.2,OOO by the company to the Hakims.

He'd: (Dun C.J. and Davidson J.; Peacock J. dissenting}:

(i) That the sale, being a sale by a vendor who, to the knowledge of
the purchaser, had no present right to sell the goods, was only an agree-
ment to sell and not a sale outright.

(ii) That following the rules laid down in the English Sale of Goods
Act 1893, the precise moment at which the property i~ transferred depends
upon the intention of the parties. That in the present case the court was
satisfied, on the evidence before it, that the parties did not intend the
property to pass until the cotton was put in a deliverable state, viz., until
it was picked and bagged.

(iii) That therefore the company had no title to the unpicked cotton
.and -no right to claim the cotton crop from the receiver in bankruptcy.

Andrew v. Newcomb (1865) 32 N.Y. 417 cited.

Brantom v. Griffits (1877) 2 C.P.D. 212 quoted.

Glyfis v. Planta, Bulletin of Egyptian Legislation and Jurisprudence, 26th

Year, No; 15, July I, 1914 distinguished.

Grantham v. Hawley (1615) Hob. 132 diseussed and distinguished.
Van Hoozer v. Cory (1860) 34 Barb. 9 cited.

Rochester Distilling Co. v. Rasey (1894) 142 N.Y. 570.cited.
Egyptian Mixed Civil Code, s. 330.

English Sale of Goods Act 1893, ss. 1, 16, 17; 18.

Action

June 4, 1925. R. H. Dun C.J.: The facts in this case are
rather exceptional and are shortly as follows:

On February 25, 1924, Salvator and Victor Hakim entered into
partnership with Stemati Trambellis for the cultivation of certain lands
near Khartoum; they were to share profits and losses in thirds. Tram-
bellis was in charge of the cultivation. The Hakims were in charge of
the financial affairs of the partnership, including the sale of the pro-
duce, but they could not sell the produce without the Consent of Tram-
bellis and if he refused his consent they could sell their shares.

Victor nakim went to Alexandria and showed the partnership
agreement to the appellant company "and arranged to' sell' the crop to
them. At that time be had no authority from Trambellis to sell upon
the proposed or any other terms to the company or to any o~ else. '

On the 5th of October, 1924, he wrote to the company a letter
which purports to be the record of a previous verbal arrangement and
a request to the company to confirm its agreement with the terms
recorded in it. The letter says, "we sell you the whole of our crop
that is the cotton produced from our cultivation as follows" describing
the cultivation and continuing, "and this on the conditions following."

The thing for which the company was to pay was ginned cotton
delivered at Liverpool. All the operations necessary to deliver ginned
cotton at Liverpool were to be paid for by the vendors; the vendors
were to pick and bag the unginned cotton and deliver it to the pur-
chasers who were to procure the performance of all other. operations
and to sell the cotton seed on account of 'and with the concurrence of
the vendors and deduct from the price of the cotton seed the cost of all
the operations of transporting, ginning, balling, shipping and insuring
as far as Liverpool and to hand back to the vendors the final balance
of the price of the cotton seed: the latter of course undertaking to pro-
vide for any deficiency .

. The price was to be fixed by reference to the price of cotton
futures in Liverpool the vendors being entitled to declare for which of
several specified' months the cotton would be delivered and the vendors
also guaranteed the purchasers a premium of 1 penny per pound.

The price was to be paid in part by an advance of £E.2,OOO in
cash and in part by the set off of debt owed by the Hakims to the
company which would be due on December 31, 1924, and the balance
after the cotton was ginned.

On October 5, 1924, when this letter was written, it appears, that
some of the cotton at any rate was in flower if not further advanced
and that all the cotton had been sown.

It is clear that the cotton which was being sold was the whole
produce of the farm and it is further alleged it was understood be-
tween Victor Hakim and the company that in case Trambellis should
not consent the Hakims should either get in his interest or should sell
their % rds. share of the produce on the terms of this letter.

The letter is signed by Victor Hakim for himself and again per
pro Salvator Hakim.

There was some correspondence between the General Manager
of the company in Alexandria and Salvator Hakim at Khartoum which
shows that up to the end of October, the company had not agreed to

structions of Victor Hakim to sell 100 bales of Egyptian cotton as
March futures in Liverpool.

The Hakims attempted to obtain Trambellis' consent to the sale
arranged by Victor Hakim on October 5th. Trambellis refused his
consent, but on November 4th he signed a document by which he pur-
ported to sell his share of the Egyptian cotton for a fixed price of
PT.742 per cantar of 315 rotls of unginned cotton, "by this agreement
it will be considered that the Sakel crop of Soba has been finally sold
to Salvator and Victor Hakim at the above rate of PT.742 per cantar."

This document was signed by Trambellis and the two Hakims
and shown to the company's agent in Khartoum.

On November 19th the company paid £E.2,000 to the Hakims.
The company alleges that the effect of this is that there was a
sale of this cotton to the company which was effective to transfer the
ownership of the cotton from the partnership of the Hakims and
Trambellis to the company either as from the 5th of October when the
letter already referred to was written or, at the latest, on November
19th when the company paid the £E.2,000. .

I cannot agree because in fact the document signed by Trambellis
does not in my opinion establish any privity of contract between the
company and Trambellis.

It was argued further that at any rate there was such a sale as
between the Hakims and the company.

In support of this there were pressed upon the court certain de-
cisions of the Mixed Tribunals in Egypt: the difficulty in Egypt arose
over article 330 of the Mixed Civil Code which states that the sale of
a crop which has not been sown is void.

This article has been found to cause great inconvenience and the
courts have felt compelled to explain it away by saying that the sale
of the whole crop or a definite number of cantars from the crop of
. specified lands does not come within this article.

'there is only one case in which the' question of the passing of the
ownership is mentioned, that is Glyfis v. Planta reported in the Bulle-
tin of Egyptian Legislation and Jurisprudence, 26th year, No. 15,
July 1, 1914, page 231.

In this case there had been a sale by the order of the court of
first instance and the Court of Appeal could only deal with the proceeds
of sale held on deposit.

These it ordered to be distributed as follows:

(1) to the privileged creditor who provided the seed from which
the crop was grown.

(2) to the privileged creditor the landlord for his rent of the
land on which the crop was grown.

(3) to the earlier of two purchasers to the extent to which he had
made advances on account of the purchase price to the vendor, and

(4) the ultimate balance to the vendor to whom the crop be-
longed the sale having failed.

It is clear that the words used in the early part of the judgment
about the property in the unsown crop passing at the time of the con-
tract were unnecessary for the decision and, if understood in the
sense in which a literal translation of them would be understood in
English, they would also seem to be inconsistent with the disposition
of the proceeds of sale actually ordered by the court.

I therefore think that this court should not be influenced by this
case in the Mixed Tribunals.

It was also argued that this case fell within the principle of the
English case of Grantham v. Hawley- and the English and American
decisions in which it has been followed.

In Halsbury's Laws of England, Vol. 25, p. 304², these decisions
are regarded as valid notwithstanding the subsequent legislation in the
Sale of Goods Act 1893, but Chalmers in his notes on this Act dis-
misses them rather contemptuously.

Supposing Grantham v. Hawley still to be good English Law, the
court is not bound to say that every contract of sale-of crops growing
or to be grown is necessarily a bill of sale rather than on agreement to
sell, but must interpret the document, and on my interpretation of the
letter of October 5, even assuming that it was agreed to both by the
Company and Trambellis, it was not a bill of' sale but an agreement to
sell: but the documents by which Trambellis agreed to part with his

1 (1615) Hob. 132.

2 Reference here is to the 1st edition of Halsbury. See 2nd ed., Vol. 25,
p. 219; 3rd ed., Vol. 29, p. 389.

share of the crop as regards the Egyptian and American crops respec-
tively were not consents by' Trambellis to the letter referred to, but
were agreements by him for the sale of his shares of the two crops
to the Hakims at fixed prices. It is true that the Hakims were therebl
enabled to deliver the cotton to the company, but that was because
they had bought in their dissenting partner's interest and not because
they had obtained his consent to be bound by the terms of that letter.

He did not consent and I see no ground for saying that he is
estopped from denying it: there was therefore. no privity of contract
between' him and the company.

The Hakims had no power, as the company knew, to sell Tram-
bellis' share, consequently unless his consent to the sale of the 5th
October was obtained, that sale was nothing more than an agreement
to sell at a future time and, therefore, did not pass the property at
that time, and the fact that the Hakims afterwards bought in the in-
terest of their dissenting partner did not in my opinion do more than
enable them to carry out that agreement and did not change the agree-
ment from a future sale to a bill of immediate sale.

The Hakims could not at any time sell their % rds share so as
to pass .the property at once because their share could not be ascer-
tained until the remaining third of Trambellis had been separated from
it.

I am therefore of opinion that there was in this case no im-
mediate transfer of the ownership.

Following the ordinary rules I think' the property did not pass
until the cotton was picked and bagged and the bags were marked.
At that time I think the property did pass.

I therefore think the appeal fails.

As regards the cross appeal by the receiver, for the reasons stated
above I think that fails.

As regards the cross appeal of Trambellis I do not think the
document signed by him operated as an immediate transfer of his
interest in the Egyptian cotton, but if it did then his appeal must fail.

If however that document only operated as an agreement to sell
then I think he has lost his right of retention or stoppage in transitu
as an unpaid vendor by his acts in putting the unginned cotton in a
deliverable state for the purpose of delivery to the company undet

the company's contract with the Hakims of which the learned judge
has held very properly that he was fully aware.

I therefore think this cross appeal fails also.

H. St. G. Peacock: Were the' Egyptian and Sudan Trading Co.
entitled to the delivery on February 1, 1925, of the Egyptian cotton
crop cultivated on the Saba Farm or was the interim receiver of the
bankrupt estate of S. Hakim and V. Hakim entitled on that date
to the ownership of the cotton subject to the rights of Trambellis?
In other words:

Are the company entitled to the delivery to them of the cotton
crop or have - they merely the right to claim damages against the
bankrupt estate for breach of contract? This is the issue which the
court below had to decide. The rights as between the receiver and
Trarhbellis were' not in issue.

The company claim to be entitled to the cotton crop by virtue of a
contract the terms of which are contained in. a letter dated Octo-
ber 5, 1924. As a preliminary matter it is important to consider
whether legally it is possible to transfer the property in a cotton crop,
before it has matured, from one person to another. Before the passing
of the Sale of Goods Act 1893 the English law was to be gathered
from a series of decisions of which the case of Grantham v. Hawley
(1615) Hob. 132 is among the earliest reported. A lessor covenanted
with a lessee, his executors and assigns that it should be lawful for
him (the lessee) to take and carry away such corn as should be
growing upon the ground at the end of the term-The lessee died;
his executors sowed a crop of corn and at the end of the term sold it--
The plaintiff was the· successor in title of the lessor and claimed. the
crop. The court decided against him on the ground that, "he that
hath the land may grant all the fruit that may arise upon it after,
and the property shall pass as soon as the fruits are extant." In other
words the plaintiff's predecessor had made a grant of and parted
with the property in the future crop, which the lessee's assignee
could remove. Such was the law in the reign of Henry VI and since
that time this case has been followed by a series of decisions in the
English courts.

The courts have drawn distinction between a sale of ascertained
goods and unascertained goods. Goods, although not in fact existing,
have been considered to be potentially existing if on coming into
existence they can ipso facto be identified or ascertained. It has been .

said that goods are in potential existence when they are the natural
product or expected increase of something owned or possessed by the
seller at the time of the contract such as the hay or wheat to be grown
in his field, the wool to be clipped from his existing sheep, the milk
to be given by his existing cows, the young to be produced by his
existing animals and similar products.

If there is no necessity for any act of appropriation by either party
for the purpose of identification, an intention may be presumed that
the property shall pass when it comes into existence. See Benjamin
on Sales-, and Halsbury's Laws of England, Vol. 25, p. 171.2

The case of Branton v. Griffits (1877) 2 C.P.D. 212 is also
authority for the proposition that the property in a growing crop can
be transferred. In that case there was a dispute as to whether a
document by which the sale of a wheat crop on a specified area of
land was a bill of sale. Lord Cockburn C.J. said:

"I am of opinipn that this was a. Bill of Sale-It is true that
in its terms it purports to be an agreement to sell, but the ob-
vious meaning of the parties is that one actually sells and the
other actually buys-If they had agreed to execute some other
instrument afterwards by which the property should be trans-
ferred then the first document would not have been a Bill of
Sale. But here, there is an agreement to sell and purchase
amounting to a transfer in presenti, which is a Bill of Sale."!

This principle of law is well recognized by the American courts

and has been stated in very clear terms. Of the title to a potentially
existing thing, Allen J., in the Supreme Court of New York, says:

"The right to it when it shall come into actual existence
is a present vested right. . .. The grant is absolute and perfect
when made, vesting the property in the grantee, the moment it
should come into existence or in the language of the books as
soon as it was extant, Van Hoozer v. Cory (1860) 34 Barb.
9, see also Andrew v. Newcomb (1865) 32 N.Y. 417 and

, Rochester Distilling Co. v. Rasey (1894) 142 N.Y. 570."2

The counsel for the appellants argued that in Egypt the 'courts
go further and that the Egyptian Mixed Tribunals- appear to' have

1 Reference is probably to the 3rd edition.
• 1st edition.

1 (1877) 2 C.P.D., at p. 214.

• Cases referred to are discussed in Benjamin on Sale, 8th ed., p, 140.

declared that the sale of a future crop even before the seed is sown
is legal and that the property passes immediately. I am not satisfied
from the authorities produced that they have and as for the purpose
of this case, the Egyptian law does not appear to conflict, I pass this
over.

It is necessary to consider the Sale of Goods Act 1893 (read
Sections 16³ and 174).

If the sale of this cotton crop is a contract for sale of unascertained
goods, the agreement cannot amount to more than an agreement for
sale and no property can pass until the goods have been ascertained.
Section 16.

If however the sale is a contract for sale of specified or as-
certained goods, it is necessary to ascertain the time when the parties
intended the property to be transferred-Section 17.

I now examine the contract, and consider,

(a) whether these-goods are specified and ascertained;

(b) whether an intention of the parties as to the time of trans-
fer appears from the contract itself upon the acts and con-
duct of the parties;

(c) whether the' intention of the parties was carried out and
whether the contract was operative.

To prove the contract the company rely on the letter dated 5th
of October, contending that this letter is a confirmation of an agree-
ment arrived at between the parties.

In form it is a letter signed by Victor Hakim for himself and on
behalf of Salvator Hakim. It is addressed to the Egyptian and Sudan
Cotton Trading <;0. and dated Alexandria, October 5, 1924.

• Section 16, Sale of Goods Act 1893 reads:

"Where there is a contract for the sale of unascertained goods no prop-
erty in the goods is transferred to the buyer unless and until the goods
are ascertained."

• Section 17;Sale'of Goods Act 1893 provides:

"( 1) Where there is a contract for the sale of specific or ascertained
goods the property in them is transferred to the buyer at such time as the
parties 'to the contract intend it to be transferred.

(2) For the purposes of ascertaining the intention of the parties regard
shall be had to the terms of the contract of the parties, and the circum-
stances of the case."

It commences:

"Dear Sirs, .

We hereby beg to confirm the verbal arrangement arranged
between us:

. We sell you the totality of our crop that is to say the

cotton resulting from our following cultivation:

350 Feddans our Soba land of Sakal Cotton

150 Feddans our Soba land of American Cotton

300 Feddans our Ghezirah land of American Cotton at the
following conditions: ... "

The conditions are then set out:

The crop is identified, the selling price is fixed on the basis
of Egyptian and American futures: and there is no need for any act
of appropriation for the p~rpose of identification for any further in-
strument for the transfer. At the end of this document is a request
for ratification by the company.

On October 15, 1924, S. Hakim writes to the company's agent
Engel, "I agree with all the arrangements you made with Mr. Victor
and I hope you will obtain the approval of the Board of Directors."

Now the letter of October 5 in itself is not a contract, and the
learned Judge admitted evidence to explain the circumstances under
which that letter was written, what was the intention of the parties
and the acts and conduct of the parties subsequent to that letter.
In my opinion he was perfectly right. The letter may be described
as an offer of the terms of an agreement which the Hakims are
prepared to carry out, and there is no complete agreement until the
company accept. I do not propose to examine the authorities here,
but in my judgment oral evidence as appears on the record is admis-
sible more especially as that evidence was taken with the consent
of both parties. The evidence admitted does not vary the terms of
the letter or the offer: possibly certain questions and answers which
appear on the record are not admissible, but certainly the court must
take into consideration the evidence of matters which are common
grounds between the parties.

It is admitted that the cotton, the subject of the contract, was
cotton at that date owned by a partnership consisting of S. & V.
Hakim and Trambellis, and it is admitted that the partnership agree-

ment was shown to the company's representative before letter of
October 5 was signed. It is admitted that the company's agent dis-
cussed the contingency of the consent of Trambellis not being obtained.

It is stated both by Victor Hakim and the company's agent in
evidence that it was agreed that Victor Hakim should obtain Tram-
bellis' consent to the agreement, or .acquire his share.

On October 5, therefore, the parties contemplated acceptance by
the company of the terms slated in the letter and it is in evidence that
the parties contemplated that Hakim should either obtain the consent
of Trambellis or acquire his share.

There is no evidence that the acceptance by the company was .
ever communicated to Hakims, but the company acted on the terms
of the letter of October 5, and Victor Hakim in his evidence states
"we considered the contract as good as there was neither confirmation
nor repudiation."

In my judgment, therefore, acceptance must be presumed from
the acts of the parties-and, either before or after the acquirement
by Hakims of Trambellis' share and if not earlier, by the payment of
£E.2,OOO on November 19.

On November 4 Trambellis made a separate agreement by which
he sold his Y:3 share in the Egyptian cotton to the Hakims. This was
shown to the company's agent; and on November 19 the company
paid £E.2,OOO to the Hakims.

Now at this stage I state that in my judgment the claim against
the partnership fails. The document by which Trambellis sold his
share to the Hakims is not the consent of Trambellis to the agreement
of October 5, but a perfectly separate transaction by which he trans-
fers his Y:3 share to the Hakims.

There is no privity of contract between the company and the
partnership and I agree that the claim against the partnership must
be dismissed. To continue my consideration of the claim against
S. S. Hakim & Co.: Having examined the contract I now consider
Whether the goods are Ascertained.

In my judgment this cotton crop comes within the meaning of
the words "ascertained goods'.' and therefore if the parties wished
they were able to transfer the property in the crop from one to the
ether. The crop on October 5 was already in existence and the

bolls on the plants and it is unnecessary to consider whether the
sale of a ,crop not yet sown would be supported by this court.

Having regard to the authorities previously cited, in my judgment
the property of a cotton crop of which the plants are above the soil
can be transferred from one person to another before picking and
ginning.

In this case the crop was clearly identified by the agreement.
Between October 5 and the present time nothing has been done
for the identification of the crop and no one has the least doubt about
the identification of the crop. The price was fixed; there was no neces-
sity for any further document to be signed; nor was any other docu-
ment intended to be signed, or in fact signed, for the identification
or transfer of the property, or for the price.

As to intention: I assume that the goods are specific and as-
certained. In order to ascertain the intention of the parties it is proper
for the court to- look at the letter of October 5, and consider the
acts and conduct of the parties. For reasons already given in my
opinion it is proper for the court also to consider the evidence on
the record.

There can, I think, be no doubt whatever that Victor Hakim
on October 5 had the intention of selling the cotton crop. Further,
there can be no question, I think, that the company's agent intended
to buy.

The words of the letter of October. 5 indicate that the parties
intended to make an absolute sale; and that document in the light of the
evidence both of the company's agent and of the Hakims indicates,
I think, that the company's agent and Victor Hakim intended, if on the
one hand the company accepted, and when on the other hand the
Hakims obtained Trambellis' consent or acquired his share, an ab-
solute sale.

This intention I think must be gathered from the letter of Octo-
ber 5 in the light of the evidence, by the acquisition by Hakims of
the share of Trambellis, by the showing of the document by which
they acquired that share to the company, the payment of money and
the letter of January 23.

If the cotton crop comes within the meaning of the words "as-
certained goods" and if the plaintiffs have succeeded in establishin

. ali intention by the parties for an absolute sale, have the parties
carried out that intention and is the contract operative?

Under section 1 of the Sale of Goods Act Section 1893:

."Where under a contract of sale the property in the goods
is transferred from the seller to the buyer the contract is called
a sale, but where the transfer of the property in the goods is to
take place at a future time or subject to some other condition
to be fulfilled, the contract is called an agreement to sell."

An agreement to sell becomes a sale when the time elapses, or
the conditions subject to which the property in the goods is to be
transferred are fulfilled. These are the words of section 1 (4).

If the acceptance or ratification by the company was before the
acquirement of Trambellis' share by the Hakims, the property could
not in fact be transefrred before Hakims had title: therefore, under
section 1 (2) the contract is an agreement of sale.

Assuming that an absolute sale on title being acquired was the
intention of the parties: the agreement of sale becomes an absolute
sale on the title being acquired.

If the acceptance or ratification by the company was after ac-
quirement of title by the Hakims: (and acceptance or ratification by
the company is certainly to be presumed, if not before, then by the
payment of £E.2,OOO on November 19), the contract was a sale at

. the time of acceptance, not an agreement to sell.' -,

I find nothing in the Bankruptcy Ordinance to deprive the ap-
pellants of any right they may otherwise possess and for the reasons
which I have stated the appeal should in my opinion be allowed.

This however is not the judgment of the court and to the judg-
ment of 'the court I bow.

In order to avoid misunderstanding I should like to add this.

In the Sudan the courts look to the principles of English law:

The principles of the law of England have been. built up by genera-
tions of judges: and are founded on a broad basis and are far reaching.
So far as the sale of goods is concerned they are now codified in the

           Sale of Goods Act 1893.           

Now, given goods in existence or what in earlier days was
described as potential existence, 'subject to certain limitations, an

owner of goods can transfer the property in them at any time he
pleases: And provided that the goods are sufficiently described or
ascertained, and the intention as to the time, of transfer is clear, the
courts will give effect to that intention.

If an intention is not clearly stated and is to be gathered from
the construction of the document itself and from the acts and conduct
of the parties, difficulty at once arises.

The two points of difficulty in this case to my mind are of fact.

1. When was the offer embodied in the letter of October 5 ac-
   cepted?
2. What was the intention of the parties?

Should I have been able to take the view of my learned brothers
as to intention; given an agreement to sell I should agree absolutely
and entirely with the decision of the court that section 18 of the
Sale of Goods Act must be applied.

As one of the conditions was that the cotton should be handed
over' unginned as it is picked, on the application of section 18,· I
agree that that would be the time of passing of the property.

Nigel Davidson J.: So far as. the appeal is concerned, in my
opinion the appellants could not hope to succeed as soon as it be-
came evident that Salvator and Victor Hakim or the Hakims and
the' company were not the owners of the crop which they agreed to sell
by the letter of October 5, that they had no power, to contract on
behalf of the partnership without the consent of the other partner,
that the purchasing company knew that the Hakims had no such
power, and that with the knowledge of the company the third partner
Trambellis was asked for his consent to the sale and refused it. The
facts are absolutely clear. The words of the partnership agreement
which deprive the Hakims of power to sell the crop without the consent
of Trambellis are unambiguous. It is admitted that the company had
notice of these words in the partnership agreement, and the company
joined in the unsuccessful attempt to get the consent of Trambellis.

The effect of Egyptian or English or International law on the
proposition so strenuously urged by learned counsel for the appellant
that the sale of a future crop by its owner passes the property in the
crop from the date of the contract of sale, is on this point immaterial,
for no one would have the hardihood to contend that under any sys-
tem of law or commercial usage a contract for the sale of a crop by

somebody to whom it did not belong could pass the property in the
crop, or be anything more than' an agreement to sell. A perfectly
good agreement no doubt by English law and also since we may dis-
regard section 330 of the Civil Code of the Egyptian Mixed Tribunals,
a good agreement by the law of Egypt. As far as I am aware there is
nothing in law to prevent A from agreeing to sell the crop on B's
field to C. A counts on.being able to get hold of B's crop; if he fails
to do so and to deliver it to C, when the time for delivery arrives, he .
is liable to C for breach of contract. But of course the property in the
crop will not pass until actual or 'constructive delivery. Learned coun-
sel apologized for citing elementary principles of law-l have no apol-
ogy for this very simple and .elementary example because it is exactly
the present case. The letter' of October 5 is an agreement by the
Hakims to sell to the company a crop belonging to the partnership,
which at the time of the agreement the Hakims, as the Company well
knew, had - no power to sell outright. It is an agreement to sell and
not a sale outright because to the knowledge of both "parties it could'
be nothing more than an agreement to sell. Nor is that all. The
whole wording of the document implies an agreement to sell and not
an out and out sale. The Hakims lay down conditions under which the
company is at some future date to sell "our crop." The course of
dealing which followed, and the correspondence with. Mr. Engel, are
all consistent only with an agreement to sell. The intention of the L
parties not to pass the property in the crop is proved by the appellant's
admission that if the crop had been destroyed by fire or the act of
God the partnership and not the company would have had to bear the
loss. Learned counsel for the appellants was perfectly right in so
stating the legal position, but such a position is entirely inconsistent
with the transfer of the property in the crop from the partnership to
the company.

For these reasons and others which were ably stated by learned
counsel for the respondents, I have no hesitation in holding that the
letter of October 5 was, and could only be, and was intended by -the
parties to: be, an agreement to sell and not a sale outright. By no
principle of law could such an agreement pass the property on the date
of the document. The person (B in my example) ill whom lies the
property in the crop is not a party to the document. And no subse- '
quent consent by B which enables A to carry out his agreement can
. alter the character of the agreement made by A and C, so as to change
it into something which it was not, and was not intended to be, when
it was made.

I am therefore not concerned to consider the point argued for the
appellants that the document executed by Trambellis was not what it
purports to be, a sale or an agreement by Trambellis to sell his share
in the crop to the Hakims, but a consent to the letter of October 5.
Even if it were such a consent, it would merely make that letter bind-
ing on the partnership; it could not alter it from an agreement to sell
into a sale. outright. As a mere consent, therefore, it could have no
effect on the date of the passing of the property. That still depends
on the character of the document itself, which is an agreement to sell.

I see no reason however for departing from the clear meaning of
the document executed by Trambellis, especially as we know that
Trambellis: had expressly refused his consent to the arrangement made
in the letter of October 5. By that Trambellis put the Hakims in a
position to carry out their (THE HAKIMS) agreement with the com-
pany. To return to my simple example it is the act which puts A
in a position to carry out his agreement to sell B's crop to C. It does
not convert A's original agreement to sell into an out and out sale
as from the date of that agreement or from any other date. But the
question still remains, under the agreement to sell, - does the property
in the crop pass to C when A becomes the owner of the crop?

This is quite a different question from the one which has been
argued and on which the cases have been cited. The arguments and
cases were. directed to showing that a contract which purported to be,
and was intended to be, an out and out sale on the date when it was
signed could pass the property in a future crop to the vendor on that
date. For the reasons which I have stated at length that is not this
case. The question in this case is whether by. an agreement to sell,
which did not and could not pass the property on the day when it was
signed, the property in the crop passed to the company as soon as the
Hakims were in a position to dispose of; (though not physically to de-
liver) the crop, that is to say, from November 4, 1924.

The law on this point is in my opinion perfectly clear and is
stated in section 18 of the Sale of Goods Act 1893. Rule 2:

"When there is a contract for the sale of specific goods and
the seller is bound to do something to the goods for the purpose
of putting them into a deliverable state the property does not pass
until such thing be done and the buyer has notice thereof."

That rule is a statutory exposition of the common law and if

earlier cases which have been cited were inconsistent with it, the rule

should, in my opinion, prevail in the courts here. In actual fact the
cases which have been cited do not conflict with the rule. In so far as
they decide that the contract in the particular case passed the property
from the date of the contract they are based on the decision in Grantham
v. Hawley. In that case the contract gave the buyer the right "to
take and carry away" the future crop. There was no duty on the
vendor to do anything to put it into a deliverable state. It is therefore
in no sense inconsistent with the rule in section 18. On the con-
trary, the wording of the rule is drawn so as to exclude such a case.
In the present case the vendor, had to cultivate and pick and bale the
cotton. It therefore clearly faUs within the rule and not within the
principle of the decision in Grantham v. Hawley and the cases which
have followed that decision.

I entirely agree with learned counsel for the appellants that in a
matter affecting the trade in cotton the Sudan, courts should pay the
most careful attention too decisions and practice of the Egyptian courts
in cases affecting cotton contracts. But in the first place he has been
unable to cite any Egyptian case which decides the principle that a sale
of a future crop passes the. property in the crop from the date of the .
contract of sale, and only one case which refers to the question at all;
and in the second place the contract which the appellant company
made in this case was not made with the owner of the .crop and there-
fore the principle, even if established, could not apply.

The case which does allude to the principle in question is that
of Glyfis v. Planta. That case decided that when two contracts for the
sale of a specific crop were entered into by or on behalf, of the
owner, one before the crop was sown, and the other after the crop had
been harvested, the earlier sale was not invalidated by section 330 of
the Civil Code of the Egyptian Mixed Tribunals, and therefore took
precedence of the later sale. As the crop had never passed into. the pos-
session of the second purchaser, the question whether the property in
the crop had passed on the date of the first contract was not relevant
to the decision, and therefore the expression which occurs in the head-
note to the effect that such a sale of a future ascertained crop is a
"trOn.;Je~t de la propriete" was at most a dictum. .I agree with the
interpretation placed on the judgment by the Chief Justice.

As I have said, the other decision of the Egyptian courts which

        have been cited do not allude to the principle at all.         

The result is that we have been shown no decision to support the
principle for which the appellants contend. But even supposing such