Lapas attēli
PDF
ePub

(33.)

Assignment of a Bond. Know all Men by these Presents, That in the hereunto annexed obligation named, for and in consideration of the sum of

lawful money of the United States of America, unto well and truly paid by

at the time of the execution hereof, the receipt whereof hereby acknowledge, have assigned, transferred, and set over, and by these presents, do assign, transfer, and set over unto the said (assignee) his executors, administrators, and assigns, to and for his and their only proper use and behoof, the said hereunto annexed obligation, which is given and executed by

to

bearing date the

Anno Domini 19 , to secure the payment of the sum of

with lawful interest therein expressed, and all moneys, both principal and interest, thereon due and payable, or hereafter to grow due and payable, with the warrant of attorney to the said obligation annexed : together with all rights, remedies, incidents, and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and all right, title, and interest therein. In Witness Whereof,

the said

have hereunto set hand and seal this

Anno Domini one thousand nine hundred and

Sealed and Delivered in the Presence of wh

day of

day of

(34.) Assignment of a Bond, with Power of Attorney, and a

Covenant. Know all Men by these Presents, That of the first part, for and in consideration of the sum of

lawfus money of the United States of America, to in hand paid by of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, ha bargained, sold, and assigned, and by these presents do bargain, sell, and assign, unto the said party of the second part, executors, administrators, and assigns, a certain written bond or obligation and conditions thereof, bearing date the

one thousand nine hundred and executed by

day of

and all sum and sums of money due, and to grow due thereon: and the said party of the first part do covenant with the said party of the second part, that there is now due on the said bond or obligation, according to the condi. tions thereof, for principal and interest, the sum of

and do hereby authorize the said party of the second part, in

name to ask demand, sue for, recover, receive, and enjoy, the money due and that may grow due thereon, as aforesaid.

In Witness Whereof, have hereunto set hand and seal the day of

one thousand nine hundred and Sealed and Delivered in the Presence of

(35.) Assignment of a Judgment in the Form of an Indenture. This Indenture, Made the

day of

one thousand nine hundred and

between

(assignor) of the first part, and

(assignee) of the second part. Whereas, The said part of the first part

one thousand nine hundred and

recovered by judgment in the (name of court) against one

the sum of Now this Indenture Witnesseth, That the said part of the first part, in consideration of

to

duly paid, ha sold and by these presents do assign, transfer, and set over unto the said part

of the second part, and assigns, the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon. And the said part of the first part, do hereby constitute and appoint the said part of the second part, and assigns, true and lawful attorney, irrevocable, with power of substitution and revocation for the use, and at the proper costs and charges of the said part of the second part, to ask, demand, and receive, and to sue out executions, and take all lawful ways for the recovery of the money due or to become due on the said judgment; and on payment to acknowledge satisfaction, or discharge the same. And attorneys one or more under for the purpose aforesaid, to make and substitute, and at pleasure to revoke; hereby ratifying and confirming all that said attorney or substitute shall lawfully do in the premises. And the said part of the first part do covenant, that there is now due on the said judgment the sum of and that

will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein, the said part of the second part saving the said part of first part, harmless of and from any costs in the premises.

In Testimony Whereof, The part of the first part, ha hereunto set hand and seal the day and year first above written.

(Seals.) Sealed and Delivered in the Presence of

(36.) Assignment of Wages, with Power of Attorney. Know all Men by these Presents, That I of in the County of

in consideration of to me paid by

of

the receipt whereof I do hereby

day of

acknowledge, do hereby assign and transfer to said

all claims and demands which I now have, and all which, at any time between the date hereof and the

next, I may and shall have against for all sums of money due, and for all sums of money and demand which, at any time between the date hereof and the said day of

next, may and shall become due to me, for services as to have and to hold the same to the said his executors, administrators, and assigns forever. And I,

do hereby constitute and appoint the said and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as I could if personally present.

In Witness Whereof, I have set my hand and seal, this day of 19

(Scal) Signed, Sealed, and Delivered in Presence of

CHAPTER X.

SALES OF PERSONAL PROPERTY.

SECTION 1.

WHAT CONSTITUTES A SALE. It is important to distinguish carefully between a sale and an agreement for a future sale. This distinction is sometimes overlooked; and hence the phrase "an executory contract of sale," that is, a contract of sale which is to be executed here. after, has come into use; but it is not quite accurate to speak of this as if it were a sale. Every actual sale is an executed contract, although payment or delivery may remain to be made. There may be an executory contract for sale, or a bargain that a future sale shall be made ; but such a bargain is not a present sale; nor does it confer upon either party the rights or the obligations which grow out of the contract of sale.

A sale of goods is the exchange thereof for money. More precisely, it is the transfer of the property in goods from a seller to a buyer, for a price paid, or to be paid, in money. It differs from an exchange, in law; for that is the transfer of

chattels for other chattels ; while a sale is the transfer of chattels for money, which is the representative of all value.

Here we must pause to speak of the legal meaning of the word "property.” It is seldom or never used in the law as it is in common conversation, to mean the things themselves which are bought, or sold, or owned. Because in law it means the ownership of the things, and not the things themselves.

If a bargain transfers the property in which means the ownership of) the thing to another person for a price, it is a saie ; and if it does not transfer the property, it is not a sale ; and, on the other hand, if it be not a sale, it does not transfer the property. As soon as a thing is sold the buyer owns it, wherever it may be. And to constitute a sale at common law, all that is necessary is the agreement of competent parties that the property in (or ownership of the subject-matter shall then pass from the seller to the buyer for a fixed price.

The sale is made when the agreement is made. The com. pletion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By the mutual assent of the parties to the terms of the sale, the buyer acquires at once the property and all the rights and liabilities of property; so that, in case of any loss or depreciation of the articles purchased, the buyer will be the sufferer; and he will be the gainer by any increase in their value.

It is, however, a presumption of the law, that the sale is to be immediately followed by payment and delivery, unless otherwise agreed upon by the parties. If, therefore, nothing appears but a proposal and an acceptance, and the vendee departs with. out paying or tendering the price, the vendor may elect to consider it no sale, and may, therefore, if the buyer comes at a later period and offers the price and demands the goods, refuse to let him have them. But a credit may be agreed on expressly, and the seller will be bound by it; and so he will be if the credit is inferred or implied from usage or from the circumstances of

And if there be a delivery and acceptance of the goods, or a receipt by the seller of earnest, or of part payment, the legal inference is that both parties agree to hold themselves

the case.

mutually bound by the bargain. Then the buyer has either the credit agreed upon, or such credit as from custom or the nature or circumstances of the case is reasonable. But neither delivery, nor earnest, nor part-payment, is essential to the completion of a contract of sale. They only prevent the seller from rescinding the contract of sale without the consent of the purchaser. Their effect upon sales under the provisions of the Statute of Frauds will be considered in the chapter on that subject. It may also be said that no one can be made to buy of another without his own assent. Thus, if A sends an order to B for goods, and C sends the goods, he cannot sue for the price, if

repudiates the sale, although C had bought B's business.

The seller (if no delivery with credit for the price is agreed n) has a right to retain possession of the property sold until che price is paid. This right is called a lien, which means the right of retaining possession of property until some charge upon it, or some claim on account of it, is satisfied. It rests, therefore, on possession. Hence the seller (and every other person who has a lien) loses it by voluntarily parting with the posses. sion, or by a delivery of the goods. And it is a delivery for this purpose, if he delivers a part without any purpose of sever: ing that part from the remainder; or if he make a symbolical delivery which vests this right and power of possession in the buyer, as by the delivery of the key of a warehouse in which they are locked up.

If the seller delivers the goods to the buyer, as he thereby loses his lien, he cannot afterwards, by virtue of this lien, retake the goods and hold them. But if the delivery was made with an express agreement that non-payment of the price should revest the property in the seller, this agreement may be valid, and the seller can reclaim the goods from the buyer if the price be not paid.

If the buyer neglect or refuse to take the goods and pay the price within a reasonable time, the seller may resell them on notice to the buyer, and look to him for the deficiency by way of damages for the breach of the contract. The seller, in making such resale, acts as agent or trustee for the buyer; and his proceedings will be regulated and governed by the rules

« iepriekšējāTurpināt »