Page:Harvard Law Review Volume 9.djvu/150

122 122 HARVARD LAW REVIEW. The practical advantages of leaving the risk with the vendor until transfer of possession are obvious. In the first place, it is better in a doubtful case to let a loss lie where it falls. It saves litigation. More important than this principle is the consideration that it is wiser to have the party in possession of property care for it at his peril, rather than at the peril of another. Of course, if the vendor in possession is negligent, and owing to his negligence the property is injured or destroyed, as matter of law the loss is his on any view, but there may be a great difference between not being so negligent as to be liable, and taking such care as would be induced by a great personal stake in the consequences. Then, too, negligence of a vendor in possession is a very difficult thing to prove, and the burden of proving it under the English rule is upon the vendee. A further consideration is the arrangement of the insurance. If the contract immediately throws the risk on the vendee, it practically removes it from an insurer of the property, for the vendor's insurable interest becomes only that of a mort- gagee ; so that, even if the insurer were forced to pay the vendor, he would be subrogated to the claim of the latter against the ven- dee. This can hardly be thought a happy result, yet it is one likely to happen after any contract of sale. The vendor ordinarily has insurance at the time of the contract. The vendee can have none, for till after that time he has no insurable interest. In fact, the vendee relies on the vendor's insurance as a protection to the work of the defendant or some one from whom he claims. Nevertheless, the fact re- mains that the plaintiff had a right to a specific thing against one in possession of it, and lost that right because of the change in its nature and value, and it is this change which is the gist of the defence. On the other hand, it may be suggested that the young of animals which the owner had contracted to sell would presumably pass to the buyer, partus sequitur ventrem. Santos v. lUidge, 6 C. B. N. S. 841, 852 ; Buckmaster V. Smith, 22 Vt, 203 ; Clark v. Hay ward, 51 Vt. 14. But in case of an agreement to sell a specific animal, or perhaps even a herd, at a future day, this is open to doubt. If the buyer was held entitled to the young, it would be because of a maxim in the Roman law, which, as it threw all risks on the buyer, necessarily gave him all profits. Moreover, the maxim related primarily to status rather than title. In 2 Kent's Com. 361, the learned author says: " If a person hires for a limited period a flock of sheep or cattle of the owner, the increase of the flock during the term belongs to the usu- fructuary, who is regarded as temporary proprietor. This general principle of law was admitted in Wood v. Ash, Owen, 139, and recognized in Putnam v. Wyley, 8 Johns. 432." One who agrees to sell at a future day, retaining in the mean time iQ. jus fruendi, should have rights at least equal to a lessee. The case of dividends on shares of stock declared between the day of a contract to sell and the time for delivery or transfer may also be suggested. But dividends are not extraordinary accidental accessions. They are normal incidents, analogous to rents and profits of real estate* To some extent the same may be said of the increase of animals.