no HARVARD LAW REVIEW, action is, therefore, rather executed than executory, and, what is the important point, is so regarded by the parties. The loss accordingly should fall on the buyer. A sale of goods with an option on the part of the buyer to return, as the title and all beneficial interest are transferred, neces- sarily throws the risk upon the buyer, for the impossibility of per- forming one half of his alternative promise to return the goods or pay for them cannot excuse non-performance of the other half.^ On the other hand, when goods are delivered with an option to purchase, as the buyer has never entered into an obligation to buy, the risk necessarily remains with the seller.^ In England this dis- tinction between a " sale or return" and a " sale on trial," impor- tant as it is for the correct decision of many questions, has not been brought out by the decisions.^ Still another principle is involved in Smith v. Hale, 158 Mass. 178. It was there held that the purchaser of a buggy, the springs of which are warranted, was not precluded from returning it for breach of warranty by the fact that the springs were broken and the buggy was therefore not in the same condition as when it was bought. The decision is correct, for by warranting the springs the seller assumed the risk of injury to them by ordinary use. Had an accidental injury happened to any other part of the buggy, — or in- deed to the springs from any other cause than ordinary use, — the loss would, it seems, have fallen upon the purchaser, under the had no interest remaining in them except by way of security for the payment of the notes given for the price." The common statutes requiring a conditional sale, like a chattel mortgage, to be recorded, show a general recognition of the similarity of the two transactions. 1 See Hotchkiss v. Higgins, 52 Conn. 205, and cases cited. Compare Newburger v. Hoyt, 86 Ga. 508. 2 Hunt V. Wyman, 100 Mass. 198; Jacob Strauss Saddlery Co. v. Kingman, 42 Mo. App. 208. 3 In Head v. Tattersall, L. R. 7 Ex. 7, and in Elphick v, Barnes, 5 C. P. D. 321, the buyer was held to be under no obligation to pay the price of a horse which, in the one case had been injured, and in the other case had died. The later case seems to have been a case of sale on trial, but in Head v. Tattersall the title was apparently intended to pass at once. In neither case was the point discussed. In Elphick v. Barnes, a dic- tum in Moss V. Sweet, 16 Q. B. 493, 495, to the effect that in case of a sale with right to return the risk was on the buyer, was explained away by the suggestion that it only applied where the loss was due to the fault of the buyer. Again, in the Sales of Goods Act, § 18, Rule 4, no distinction is observed. The same rule of presumption is laid down for a " sale or return " and a " sale on approval." Chalmers in his annotation of the act, however, points out the distinction p. 42. The cases in this country are col- lected in Benjamin, Sales (Am. ed. 1892), pp. 568, 569.
