become impossible, or pay damages for the non-performance, and such construction is to be put upon an unqualified undertaking, where the event which causes the impossibility might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor. But where the event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words, which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens."

§ 1105. Unexpected expense does not excuse.- So obviously the fact that the contract cannot be performed without a great and unlooked-for expense does not constitute such impossibility as will excuse.1

8. Prevention of Performance.

1106. Prevention by one party equivalent to performance by the other.— Akin to the question of waiver of performance is that of the prevention by one party of performance by the other. If the performance by one party is a condition precedent to performance by the other, and the latter, when the former offers or is ready to perform, refuses to accept the performance, or hinders or prevents it, this is clearly a waiver and the latter's liability becomes fixed and absolute. This act of prevention may be either an express refusal to accept or permit performance, or it may be some act in pais operating more indirectly to prevent or preclude performance. In either event,

1 Paine v. Sherwood (1875), 21 Minn. 225 [citing Dermott v. Jones, 2 Wall. 1; Stees v. Leonard, 20 Minn. 494].

2 Such a case was Ketchum v. Zeilsdorff, 26 Wis. 514. Here logs, which A had contracted to deliver to Bat a certain time, were seized before that time upon a writ of replevin sued out

by C, upon whose bond B became surety. It was held that the delivery of the logs as agreed was prevented by the act of B, and that he could not insist upon delivery until the replevin suit was determined.

Where there was a contract for the sale of a monument with an inscrip

however, the act or conduct of the one which prevents performance by the other is an excuse for the latter's non-performance. "If it were necessary to cite any case for this, which is evident from common sense," said Ashhurst, J., "it was so held in Roll's Abridgment and many other books." 2

After part performance.— If the prevention is of further performance after the receipt of performance in part, the defaulting party is of course liable for what he has already received and accepted.3

III.

WHAT CONSTITUTES PERFORMANCE.

§ 1108. In general.-It remains next to be considered what constitutes performance by each party and what acts are necessary to be performed by each to perfect such performance.

In Hotham v. East India Co., 1 Co. v. Humble, 153 U. S. 540, 38 L. T. R. 638, 1 Rev. R. 333.

This suggests a natural subdivision of the subject as follows:

1. Performance by the seller.

2. Performance by the buyer.

1. Performance by the Seller.

§ 1109. Of performance by the seller in general.-The duties which the contract imposes upon the seller are chiefly four, namely:

I. To convey the title.

II. To deliver possession.

III. To comply with all conditions precedent.

IV. To perform collateral agreements, e. g., warranties. Each of these several matters must be separately considered and will form the subject of a chapter.

2. Performance by the Buyer.

§ 1110. Of performance by the buyer in general.— The duties which the contract imposes upon the buyer are chiefly two, namely:

I. To accept the transfer and delivery of the goods.
II. To pay the price.

Each of these matters must likewise be separately considered, and will form the subject of a chapter.

956

CHAPTER II.

OF THE TRANSFER OF THE TITLE BY THE SELLER.

§ 1111. Necessity of the transfer.

1112. What constitutes the trans

fer.

§ 1113, 1114. Evidence of the trans

fer Bill of sale. 1115. Duty of the seller.

§ 1111. Necessity of the transfer.- Every sale of goods, when analyzed into its elements, consists, so far as the seller is concerned, of two parts, namely: 1, the agreement to transfer the title; and 2, the actual transfer of the title,― in other words, the contract and the conveyance. It may well happen, as it usually does in actual cases, that these two acts are practically simultaneous, but they are not necessarily so. The first may long precede the second, constituting what has often been called the executory sale. The first may exist though the second never takes place, as where for some reason, like the breaking off of the negotiations or the non-performance of conditions precedent, the occasion for passing the title in pursuance of the agreement never arises. But in order that a sale, as it has been defined in this work, shall exist, it is of course necessary that at some time the transfer of the title shall actually take place.

§ 1112. What constitutes the transfer.- The question in hand is much simplified by the fact that, in the ordinary case, no formal transfer or conveyance is necessary. Unlike the case of real property, the title to personal property passes, as a general rule, whenever the parties intend that it shall pass. This subject has been already so fully discussed in earlier sections' that little further is here required; but, as will be remembered, where the chattel is specifically ascertained the title

1See ante, § 476 et seq.

to it passes, as the result of the intention of the parties, when ever and as soon as the bargain is complete and the seller has done everything which the contract contemplates as preliminary to the passing of the title. Where the chattel is not specific at the time of the negotiations, the title, as has been seen, will pass whenever and as soon as some specific chattel has been definitely appropriated to it. These general rules will of course yield to contrary agreement or to opposing intention; what is here to be emphasized is that, as a rule, whenever it is the intention that the title to a specific chattel shall pass, it does pass by force of that intention.

§ 1113. Evidence of the transfer - Bill of sale.—It is of course entirely competent for the legislature to prescribe some form of making the transfer, or to declare what shall be the evidence of such a transfer, and these statutory requirements must be complied with. The note or memorandum in writing required by the statute of frauds affords the best illustration of the nature and effect of such provisions. Statutes are also found in many States requiring a bill of sale to be executed and per haps filed or recorded in certain cases, and statutes of this nature must likewise be observed.

§ 1114.. In the absence, however, of these statutory provisions, it is the general rule that sales of chattels require no special formalities and no written conveyance or other documentary evidence of their existence. Written evidence may, in many cases, be a convenience or a matter of precaution, but it is not indispensable except as already indicated.

§ 1115. Duty of the seller. The duty of the seller to make the transfer of title may be subject to a great variety of conditions precedent, both express and implied, most of which have been already considered. The present question is not with that; but assuming that all conditions precedent to the passing of the title have been performed, what then is the duty

1 See ante, § 482.

2 See ante, § 721.