Pignataro v Gilroy

Facts

• The defendants sold 140 bags of rice to the plaintiff.
• The plaintiff paid and requested delivery.
• The sellers delivered part and, in respect of 15 bags, sent the buyer a delivery order specifying a wharf where those specific bags were lying ready for collection.
• The buyer did not send for the 15 bags for about a month and raised no objection to the arrangement.
• During that period the bags were stolen without any negligence on the sellers' part.
• The buyer sued for non-delivery.

Issue

1. Whether property in the 15 bags had passed by appropriation with the buyer's assent, so that the risk of theft fell on the buyer.

Held

• Rowlatt J held that property had passed and the buyer bore the loss. The sellers had appropriated the specific 15 bags to the contract and had communicated the appropriation by the delivery order. The buyer's silence, and his failure over a month to object or to collect, amounted to assent to that appropriation. Property having passed, the risk passed with it, and the theft was the buyer's loss.

Ratio Decidendi

Assent to appropriation under what is now S.23 need not be express. Where the seller sets aside identified goods and informs the buyer, and the buyer neither objects nor acts inconsistently, assent is inferred. The rule that risk follows property then determines who bears a subsequent loss.