HYNDMAN-JONES J

This was an issue which was directed to be tried by the Court to determine whether certain machinery at the Passir Panjang Brick Works is the property of the Plaintiff or Messrs. HOWARTH ERSKINE, LTD., and as to whether, in the alternative, Messrs. HOWARTH ERSKINE, LIMITED, have not a lien on the machinery for the balance due on the purchase price. The facts are simple. By a contract in writing entered into on the 25th of June, 1992, Messrs. HOWARTH ERSKINE, LIMITED, agreed with Mr. LIM JE GING, who is described as the proprietor of the Passir Panjang Brick Works, to supply, deliver and erect in position and start in good working order for the sum of $21,500 the brickwork machinery detailed in a specification attached to the contract, which specification is declared to be part of the contract. The contract goes on to provide for the payment of instalments of the purchase money at various times, and the note to the specification provides that the whole of the plant shall be imported form C. WHITAKER & Co. Ltd., as described in their catalogue, at the sole risk of the contractors.

On the 4th December, 1902, the Plaintiff registered a memorandum of charge executed by LIM JE GING in his favour of three pieces of lands on part of which were the brickworks previously mentioned, "together with the messages, buildings, erections, fixed machinery, boilers and engines and brick kiln erected or to be erected or being or which shall be on the said three pieces of lands or any of them."

The Plaintiff therefore claimed to be entitled to the machinery under this memorandum of charge, on the other hand Messrs. HOWARTH ERSKINE, LIMITED, claimed that such machinery as was on the land under the contract was their property or in the alternative that they had a lien on it for the unpaid balance of the purchase money.

As to the contract it is clearly to my mind a sale of future goods by description within the meaning of s. 18 of the "Sale of Goods Act," 25 "further goods" are defined by the Act s. 62(I) as "goods to be acquired by the seller after making the contract of sale", and in this case the goods are described in the specification and are to be acquired by the contractors from C. WHITTAKER & Co., Ltd., the goods must also be held to have been "unconditionally appropriated" to the contract because Messrs. HOWARTH ERSKINE, LIMITED, delivered them to LIM JE GING and did not reserve any right of disposal s. 18 r. 5 (2), they were also "in a deliverable state" because there was nothing more to be done to them except to put them in position; they were in such a state in fact, so far as the goods themselves were concerned, the LIM JE GING would under the terms of the contract, have been bound to take delivery of them. It is true that Messrs. HOWARTH ERSKINE, LIMITED, are bound under the contract to erect this machinery and start it in good working order, but that is something which they have to do with the machinery after its delivery not something they have to do to the machinery for the purpose of putting it in a deliverable state. I am unable, therefore, to agree with Mr. Carver that this is a case falling under s. 18 r. 2, or that the cases to Tripp v. Armitage 4 M & W 687, and Seath v. Moore II Ap. Cas. 350, apply. So far I have been referring of course to the goods supplied under the contract, but with regard to the steam engine I am also of opinion that the property in it has passed to LIM JE GING. It was a sale of "specific goods" no doubt, but a sale of specific goods in a deliverable state, and the property therefore passed when the contract was made, rule 18(I). The machinery supplied under the contract and the steam engine are, therefore, so far as the passing of the property is concerned in the same position.

That being so we have to consider the rule as to fixtures, viz., that as between mortgagor and mortgagee, the mortgagee is entitled to all fixtures which may be upon the land. It was said that this me