for the contract price, but where an agreement to buy is broken, the seller's remedy is an action for unliquidated damages. If an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes; they may be taken in execution for his debts, and, if he becomes bankrupt, they pass to his trustee, who may disclaim the contract. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods themselves, such as the actions for conversion and detinue. In many cases, too, he can follow the goods into the hands of third parties. Again, if there be an agreement for sale, and the goods are destroyed, the loss, as a rule, falls on the seller, while, if there has been a sale, the loss, as a rule, falls upon the buyer, though the goods have never come into his possession." 1 A sale of personal property is a transfer by the seller of the general or absolute property thereof to the buyer for a consideration.2 The essential elements, therefore, are: (a) Parties; (b) An agreement to transfer; "bargain" or "mutual assent;' (c) "Sale" or transfer; (d) Property; or title; (e) Goods; (f) Price or consideration. (a) "Seller' means a person who sells or agrees to sell goods or any legal successor in interest of such person. 'Purchaser' includes mortgagee and pledgee.' 1. Chalmers' Sale of Goods Act, p. 7. "The distinction between a bargain and sale and a conditional sale is a vital one. If by the terms of the agreement the property in the thing sold is intended to pass immediately to the buyer, the contract is a bargain and sale; but if the property in the goods was to remain for the time being in the seller and only to pass to the buyer at a future time, or on the fulfillment of certain conditions, then the contract is an executory Aside from the foregoing definition, the Act expressly leaves the capacity of the parties to the general law concerning capacity to contract.5 (b) The Act deals only with consummated agreements; if, for any reason, negotiations do not terminate in a valid agreement, the Act does not apply. Ба (c) "Sale' includes a bargain and sale as well as a sale and delivery." "The essence of sale is the transfer of the property in a thing from one person to another for a price." While a sale is a transfer of the title in consequence of an agreement to transfer, the idea of the transfer is so predominant that the making of the agreement is practically lost sight of. (d) "Property' means the general property in goods and not merely a special property." 8 Hence the owner of the absolute property may transfer it, subject to the incumbering rights of the owner of a special property in the goods." 666 (e) Goods' includes all chattels personal other than things in action and money, and the term includes emblements, industrial growing crops, and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale." 10 5. Sec. 2. 5a. Singer v. Grand Rapid Co., 117 Ga. 86. 6. Sec. 76. St. Louis, I. M. & S. R. R. Co. v. Wynne Hoop, etc., Co., 81 Ark. 573. 7. Chalmers' Sale of Goods Act, p. 2. See, also, Mechem on Sales, § 1. 8. Sec. 76. See, also, 1 Mechem on Sales, § 1. 9. Franklin v. Neate (1884), 13 M. & W. 481; Jenkyns v. Brown (1849), 14 Q. B. 496; Schmidt v. Rankin, 193 Mo. 254. Where an officer, having attached goods, delivers them to a third person, taking his accountable receipt, and the receiptor delivers them up to the debtor, the debtor may make a valid sale of them, whether they remain bound by the attachment or not. If they remain bound by the attachment, the general property will pass by the sale, subject only to the lien. Denny v. Willard, 28 Mass. (11 After delivery, the purchaser takes a prior title to a subsequently attaching creditor. Fettyplace V. Dutch, 30 Mass. (13 Pick.) 388; Appleton v. Bancroft, 51 Mass. (10 Met.) 231; National Bank V. Thomas, 125 Mass. 278; Storey v. Agnew, 2 Ill. App. (2 Bradw.) 353; Klinck v. Kelly, 63 Barb. (N. Y.) 622; Mumper v. Rushmore, 14 Hun (N. Y.), 591; Myers v. Uptegrove, 3 How. Pr. N. S. (N. Y.) 316. A mere lien on personal property created by attachment in favor of a trespasser will not prevent the owner from transferring his title to it. Calkins v. Lockwood, 17 Conn. 174; Bard v. Van Etten, 72 Ark. 494. 10. Sec. 76. (f) Price. Mr. Benjamin defines the consideration as 66 a price in money;" 11 and Mr. Mechem, as "a price or a consideration estimated in money." 12 The Act expressly repudiates the propo sition that the consideration must be in money, and in sec. 9 provides that "the price may be made payable in any personal property." 13 A sale1 is to be distinguished from 11. Benjamin on Sales, §§ 1, 2. 'A sale of necessity implies a consideration or price." State v. Muntz, 3 Kans. 383, 386; quoted in First National Bank of Concordia v. McIntosh, 72 Kan. 604, 611; citing Union Stock Yards Co. v. Western Land & Cattle Co., 59 Fed. 49. 12. 1 Mechem on Sales, § 1. 13. "While it is true that in its strictest sense a sale is a transfer of personal property in consideration of money paid or to be paid, still in the interpretation of statutes it is often held to include barter and any transfer of personal property for a valuable consideration. In a general and popular sense, the sale of an article signifies the transfer of property from one person to another for a valuable consideration without reference to the particular mode in which the consideration is paid. Bigelow in Howard v. Harris, 90 Mass. (8 Allen) 297, 299." Gallus v. Elmer, 193 Mass. 106, 109. 14. Benjamin on Sales, § 1; Bishop v. Shillitto (1819), 2 B. & Ald. 329. The passing of title is the distinguishing feature of an executed contract of sale. Cooper v. Payne. 103 N. Y. App. Div. 118. An executed sale vests an absolute title in prasenti; an executory one does not. Kelly v. Upton, 5 Duer (N. Y.) 336. In any case of the sale of goods, the title does not pass from the seller to the buyer until such time as the parties intend it shall pass." Kost v. Reilly, 62 Conn. 57, 60. See, also, Warren Mfg. Co. v. Norwich Bleaching Co., 56 Conn. 70, 76. agrees to purchase" goods, and pay the stipulated price before a fixed day or return the goods in good condition, free from any debts; held to be an agreement for a present sale. Martin v. Adams, 104 Mass. 262. Contra, Brock v. O'Donnell, 45 N. J. L. 441 (16 Vroom.). K bought of H Russia mats. "It is understood that K is to pay $4.00 per month storage for the above mats from this date, and interest on the mats until paid for." Held, a present sale. Stone v. Hodges, 31 Mass. (14 Pick.) 81. See, also, Blasdell V. Souther, 72 Mass. (6 Gray) 149; Elliott v. Stoddard, 98 Mass. 145; Dittmar v. Norman, 118 Mass. 319. A release of all one's right, title and interest in personal property, if fairly made, the buyer knowing the infirmity of title, and assuming the risk thereof, is a good consideration for an express promise to pay the price agreed upon for the sale, although it turns out that the vendor had no title whatever. Such a release may be declared on as for a sale. Kerr v. Lucas, 83 Mass. (1 Allen) 279. "Sale" in contract interpreted. The superintendent of a manufacturing corporation was entitled under his contract to a commission on the profits of all sales of manufactured goods. Held that a sale of all the stock of the corporation and a transfer of its plant and property, including manufactured goods, was not a sale within the meaning of his contract. Woodbridge v. The Pratt & Whitney Co., 69 Conn. 304. (a) A contract to sell in the future.15 These transactions have been distinguished ante. (b) A bailment, which conveys only a special property. The test determining whether a transaction is a sale or a bailment is The delivery of liquor by a club to its members is not a sale. Com. v. Smith, 102 Mass. 144; Com. v. Pomphret, 137 Mass. 564; Com. v. Ewig, 145 Mass. 119; Com. v. Baker, 152 Mass. 337; 1 Mechem on Sales, § 55; Chalmers' Sale of Goods Act, p. 10; Graff v. Evans (1882), 8 Q. B. D. 373; Newell v. Hemenway, 16 Cox C. C. 604; Davies v. Burnett (1902), 1 K. B. 666; Newman v. Jones (1886), 17 Q. B. D. 132; Baird v. Wells (1890), 44 Ch. D. 661; Barden v. Montana Club, 10 Mont. 330; People v. Adelphi Club, 149 N. Y. 5; Seim v. State, 55 Md. 556; State v. McMaster, 35 S. C. 1; Tenn. Club v. Dwyer, 79 Tenn. (11 Lea) 452; Piedmont Club v. Com., 87 Va. 540. Contra, Martin v. State, 59 Ala. 34; State v. Warcholick, 80 Conn. 351; Rickart v. People, 79 Ill. 85; Marmont v. State, 48 Ind. 21; State v. Mercer, 32 Iowa, 405; State v. Horacek, 41 Kan. 87; Kentucky Club v. Louisville, 92 Ky. 309; State v. Easton Club, 73 Md. 97, 102; People v. Soule, 74 Mich. 250; State v. Essex Club, 53 N. J. L. 99; People v. Andrews, 115 N. Y. 427; State v. Lockyear, 95 N. C. 633; State v. Neis, 108 N. C. 787. "Sale " means a contract to give and pass rights of property for money. In a statute authorizing a trustee to sell, it does not include a transfer in payment of debts. Williamson v. Berry, 49 U. S. (8 How.) 495, 544. 15. Powder Co. v. Burkhardt, 97 U. S. 110; Dunham v. Williams Cooperage Co., 83 Ark. 395; Lake v. Combs, 84 Ark. 21; Cardinell v. Bennett, 52 Cal. 476; Olney v. Howe, 89 III. 556; Lester v. East, 49 Ind. 588; McArthur v. Mathis, 133 N. C. 142; Garbracht v. Com., 96 Pa. St. 449; . Kirven v. Pinckney, 47 S. C. 229; Hibblewhite v. M'Morine, 5 M. & W. 462; 1 Mechem on Sales, § 476; Benjamin on Sales, § 1. The intention of the parties determines whether title is to pass at once or in the future. 1 Mechem on Sales, § 477; Benjamin on Sales, p. 4; Anderson v. Read, 106 N. Y. 333; McCrae v. Young, 43 Ala. 622; Browning v. McNear, 145 Cal. 272; Heilbutt v. Hickson. (1872), L. R. 7 C. P. 438; Cochrane v. Moore (1890), 25 Q. B. D. 57 C. A.; Johnson v. Macdonald, 9 M. & W. 600 (1842). A memorandum purporting to sell goods on a vessel at sea is an agreement to sell. Shields v. Pettee, 2 Sand. (N. Y.) 262, 4 N. Y. 122; Fraser v. Harbeck, 4 Rob. (N. Y.) 179; Russell v. Nicoll, 3 Wend. (N. Y.) 112; Fry v. Smith, 3 Daly (N. Y.), 386. A sale of goods to arrive" is an executory contract to sell. Reimers v. Ridner, 2 Rob. (N. Y.) 11; Flanagan v. Demarest, 3 Rob. (N. Y.) 173. A contract to deliver at a certain price a quantity of trees of a specified kind, to be grown after the contract, is not strictly a contract of sale, nor would it be valid as such, but it is a valid executory contract; and it does not confine the vendor to deliver any particular individual trees, or only trees raised by the contractor, but a tender of any trees answering the description of the contract will be compliance with the contract." Parsons v. Woodward, 22 N. J. L. (2 Zab.) 196. The vendor's acceptance of the purchaser's offer with a statement that he will deliver on a future day upon payment of the purchase price, is an executory agreement to sell and not a present sale by which the title that in a bailment the identical thing is returned, although in altered form.16 passes at once. If before the day specified the vendor sells and delivers the goods to another, the first purchaser cannot maintain replevin against the second. Kerr v. Henderson, 62 N. J. L. (33 Vroom.) 724. A agreed to sell to B at a fixed price specified materials for making barrels, and B agreed to take the same as fast as a certain sugar house should require barrels and to pay for it in a specified manner. Held an executory agreement to sell and not a sale. The question arose upon the determination of the loss for the destruction of the goods by fire before delivery. Brock v. O'Donnell, 49 N. J. L. (20 Vroom) 230. Affirming Brock v. O'Donnell, 45 N. J. L. (16 Vroom) 441. 5; 1 16. Benjamin on Sales, P. Mechem on Sales, §§ 19, 20; Powder Co. v. Burkhardt, 97 U. S. 110, 116; Sturm v. Boker, 150 U. S. 312, 329; Heryford v. Davis, 102 U. S. 235; Richardson v. Olmstead, 74 Ill. 213; First Nat. Bank of Elgin v. Schween, 127 Ill. 573; Morse v. Johnson, 86 Minn. 9; Mallory v. Willis, 4 N. Y. 76; Foster v. Pettibone, 7 N. Y. 433; Norton v. Woodruff, 2 N. Y. 153; Sattler v. Hallock, 160 N. Y. 291, 46 L. R. A. 679; Hemstreet v. Hurley, 21 Misc. (N. Y.) 426; Pierce v. Schenck, 3 Hill (N. Y.), 28; Smith v. Clark, 21 Wend. (N. Y.) 83; Savage v. Salem Mills Co., 48 Ore. 1; Butterfield v. Lathrop, 71 Pa. St. 225; Bretz v. Diehl, 117 Pa. St. 589; Rich v. Com. Sav. Bank, 30 Utah, 334; Slaughter v. Green, 22 Va. (1 Rand.) 3; Brown v. Hitchcock, 28 Vt. 452; Gleason v. Beers, 59 Vt. 581; So. Australian Ins. Co. v. Randell, L. R. 3 P. C. C. 101. A furnished materials for B to make boots to be shipped to A for sale. Held, that the title to the materials did not pass to B, although accompanied by a bill of parcels in common form, and that A might reclaim the boots made from that material from one who had received them from B to secure advances made to B. Schenck v. Saunders, 79 Mass. (13 Gray) 37. See Mansfield v. Converse, 90 Mass. (8 Allen) 182. The intention of parties determines. Rice v. Nixon, 97 Ind. 97; Woodward v. Seamans, 125 Ind. 330; Johnston v. Browne, 37 Iowa, 200; Nelson v. Brown, 44 Iowa, 455; Irons v. Kentner, 51 Iowa, 88; Wieland v. Sunwall, 63 Minn, 320. Whether a transaction is a sale or a bailment is a question of fact for the jury. Massey v. Dixon, 81 Ark. 337; 1 Mechem on Sales, § 35; Crosby v. Del. & Hud. Canal Co., 119 N. Y. 334, 128 N. Y. 641; Chickering v. Bastress, 130 Ill. 206; Fish v. Benedict, 74 N. Y. 613. A receipt for three barrels of fish to be paid for when delivered at $6.00 per barrel implies a sale. McArthur v. Wilder, 3 Barb. (N. Y.) 66. A receipt for a quantity of wheat "in store" implies a bailment. Goodyear v. Ogden, 4 Hill (N. Y.), 104; Dawson v. Kittle, 4 Hill (N. Y.), 107; Outwater v. Nelson, 20 Barb. (N. Y.) 29. The agreement in advance of the amount of damages to be paid by the bailee for failure to return does not convert the bailment into a sale. Westcott v. Thompson, 18 N. Y. 363. The plaintiff leased a grist mill to N with an agreement that he should buy grain for N to grind and sell in the mill, for which N should pay the cost price at the railroad station in his town and one cent per bushel in addition. That N should pay him once a month for grain sold during the month preceding, and be responsible for all grain sold, collect all |