The Canadian cases relating to parol evidence to explain the written memorandum will be found in the notes to Chapter 4 of this part, beginning at page 81. The brokers' notes are memorandums of the sales, and all that has been said on the previous pages applies to this particular species of memorandum. There are very few Canadian cases relating to the subject of brokers' notes.

Parol variations. The subject of parol variations must not be confused with that of parol evidence to explain, add to or supplement the memorandum, or to destroy its effect as a memorandum under the Statute of Frauds. This topic has been dealt with in the notes to Chapter 4 of this part, ante p. 81a and following pages.

PART II.

SALE AND AGREEMENT TO SELL.

CHAPTER I.

GENERAL RULES TO ASCERTAIN WHETHER AN AGREEMENT

AMOUNTS TO A SALE OR NOT.

THE next question to be considered is, what are the circumstances under which a contract (good within the Act) amounts to a sale (a) of goods, so as to operate as an actual sale of them, and when not?

This is, properly speaking, a question depending upon the construction of the agreement, for the law professes to carry into effect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement, and not before. In this as in other cases, the parties are apt to express their intention obscurely, very often because the circumstances rendering the point of importance were not present to their minds, so that they really had no intention to express. The consequence is, that without absolutely losing sight of the fundamental point to be ascertained, the Courts and legislature have adopted certain rules of construction which in their nature are more or less technical; some of them seem very well fitted to aid the Court in discovering the intention of the parties: the substantial sense of others may be

(a) It should be borne in mind that with the advent of the Sale of Goods Act, 1893, the old expression 'bargain and sale," formerly used to denote a completed sale accompanied by the transfer of the property in the goods, disappeared, being replaced by the term "sale."

K

questioned (a). The Sale of Goods Act, 1893, by section 1 provides as follows:—

(1) A contract of sale of goods (b) is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price. There may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. (3) 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 condition thereafter to be fulfilled, the contract is called an agreement to sell." (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred (b).

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The parties do not contemplate a sale till the specific goods on which that contract is to attach are agreed upon. But when the goods are ascertained, the parties are taken to contemplate an immediate sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfilment of any conditions; and when by the agreement the seller is to do anything to the goods for the purpose of putting them into a deliverable. state, or when anything is to be done to them to ascertain the price, it is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But as these are only rules for construing the agreement, they must yield to anything in the agreement that clearly shows a contrary intention, for the parties may lawfully agree to an immediate transference of the property in goods, although the seller is to do many things to them before they are to be deliverable: and, on the other hand, they may agree to postpone the vesting of the property till after the fulfilment of any conditions they please.

A contract of sale, under section 1 (1) of the Act, includes an agreement to sell, and an actual sale.

(a) Post, p. 185.

(b) See also s. 5 (1) as to "future goods."

. Such a contract may have different effects in law upon the ownership of the goods to which it relates. It may be an agreement perfectly binding on the parties so as to give either of them a remedy against the person and general estate of the other for any default in fulfilling his part of the agreement, but having no effect on the property or right of possession in the goods, and giving the proposed buyer neither the rights nor liabilities of the proprietor; so that he has no preferable right to the goods themselves, nor any means of enforcing his demand against them other than those of any other creditor, while on the other hand he is not liable to any loss arising from the destruction or injury of the goods.

A contract of this nature is generally called an "executory agreement" or an "agreement to sell," and, as indicated above, only confers upon the proposed purchaser a right in personam, and no right in rem attaches to the goods.

On the other hand it may be an agreement amounting to a "sale," or what was formerly known as a "bargain and sale" (a), which transfers to the buyer the general property in the goods, and with it the rights and liabilities attached to the property. The buyer in this case has a right in rem, a specific interest in the goods themselves, of which he may avail himself, independently of his remedy againt the seller on the contract, and on the other hand making him liable to the general risk of any loss befalling the goods. This transaction is sometimes called an "executed sale," and the seller, if unpaid, still retains certain rights over the goods until they are delivered (see post, page 339).

These rules require a careful examination of the cases in which they have been applied, in order to perceive their precise meaning and force (b).

(a) The old term "bargain and sale" was an expression of very definite meaning in use in the old forms of pleading: it stood for what is sometimes called an "executed contract," that is, one where the property has passed. An executory contract is one where the property has not passed. Neither "executed" nor "executory" refers to something done or to be done according to the contract other than as above.

(b) They are nearly, but not quite, equivalent to the text of the Digest: Si id quod venierit appareat quid quale quantum sit et pretium et pure venit perfecta