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Where Transfer is Not for a Price-Gift.

If the transfer of the property in goods is without consideration, the transaction is a gift. A gift differs from a sale, also, in that delivery is essential to effect a gift."

Same-Exchange.

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If the consideration for the transfer of the property in goods consists of other goods, no price being fixed for either, the transaction is an exchange or barter." The legal effect of a contract of exchange is, however, generally the same as that of a contract of sale." The principal difference is in respect to the form of pleading and the measure of damages, since in the case of an exchange the declaration must be for damages for the breach of the special contract, and not in assumpsit for goods sold, or goods sold and delivered. And authority to sell does not confer authority to exchange. The distinction may also be material in interpreting a statute which refers in terms to sales. A contract of exchange is held to be a con

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58 Noble v. Smith, 2 Johns. (N. Y.) 52, 3 Am. Dec. 399; Grover v. Grover, 24 Pick. (Mass.) 261, 35 Am. Dec. 319; Cochrane v. Moore, 25 Q. B. Div. 57.

59 Harrison v. Luke, 14 Mees. & W. 139; Read v. Hutchinson, 3 Camp. 352; Williamson v. Berry, 8 How. (U. S.) 495, 544, 12 L. Ed. 1170; Mitchell v. Gile, 12 N. H. 390; Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Dowling v. McKenney, 124 Mass. 480.

Sales Act, § 9 (2), abolishes the distinction between sale and barter. Cf. section 9 (3).

Where a note is taken in conditional payment, the transaction is a sale, and not an exchange. Sebastian May Co. v. Codd, 77 Md. 293, 26 Atl. 316.

60 Com. v. Clark, 14 Gray (Mass.) 367, per Bigelow, J., 372. See Emanuel v. Dane, 3 Camp. 299 (warranty); La Neuville v. Nourse, Id, 351 (caveat emptor); First Nat. Bank v. Reno, 73 Iowa, 145, 34 N. W. 796.

01 Harris v. Fowle, cited in Barbe v. Parker, 1 H. Bl. 287; Mitchell v. Gile, 12 N. H. 390; Vail v. Strong, 10 Vt. 457; Herrick v. Carter, 56 Barb. (N. Y.) 41; Slayton v. McDonald, 73 Me. 50. Otherwise where the contract of exchange is for goods at a stipulated price, Forsyth v. Jervis, 1 Starkie, 437; Hands v. Burton, 9 East, 349; Harrison v. Luke, 14 Mees. & W. 139; Way v. Wakefield, 7 Vt. 228; Picard v. McCormick, 11 Mich. 69; or where the exchange is only partly for goods, and the action is to recover the money balance after de livery of the goods, Sheldon v. Cox, 3 Barn. & C. 420.

62 See Tiffany, Ag. pp. 207, 223.

63 Proof of barter does not support an indictment charging sale of

tract of sale within the statute of frauds.

And in cases where goods are delivered, and the receiver is to deliver other goods in return, so that the property passes, the courts generally describe the transaction as a sale."5

Contract for Work, Labor, and Materials.

A distinction is sometimes drawn between a contract to sell goods and a contract for work, labor, and materials. The distinction is chiefly important in determining whether the contract is one "for the sale of goods" within the statute of frauds, and for determining this question different rules prevail in different jurisdictions, which will be considered hereafter." The question may be otherwise material, however; for example, as affecting the form of pleading and the measure of damages,** or the time when the property passes.

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CAPACITY OF PARTIES.

6. IN GENERAL. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property.

7. NECESSARIES. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery.70

liquor. Stevenson v. State, 65 Ind. 409; Massey v. State, 74 Ind. 368. A sale is not within the meaning of a statute declaring illegal the sale of a slave by a trader without a license. Gunter v. Lechey, 30 Ala. 596.

But in Massachusetts an exchange has been held to be a sale within the meaning of a statute prohibiting the sale of liquor. Howard v. Harris, 8 Allen (Mass.) 297; Com. v. Clark, 14 Gray (Mass.) 367.

64 Post, p. 71.

65 Ante, p. 6.

6 Post, p. 62.

67 See Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381, 19 L. R. A. 285. 68 Garvin Mach. Co. v. Hutchinson, 1 App. Div. 380, 37 N. Y. Supp. 394.

69 Central Lith. & Eng. Co. v. Moore, 75 Wis. 170, 43 N. W. 1124, 6 L. R. A. 788, 17 Am. St. Rep. 186; Fairbanks v. Drug Co., 42 Mo. App. 262; post, p. 348.

10 These two sections follow Sales Act, § 2.

The capacity of persons to buy and sell is generally determined by their capacity to contract, upon which subject the reader is referred to works upon contract. "Capacity to contract must be distinguished from authority to contract. Capacity means power to bind oneself; authority means power to bind another. * * * Capacity is usually a question of law; authority is usually a question of fact. As regards authority to buy and sell on behalf of another, there appears to be nothing peculiar in the law of sales, except the provisions of the factors' acts." 71 On the subject of authority, therefore, the reader is referred to works on the law of agency and partnership." There are, however, certain classes of persons, in part incapable of contracting, who, under special circumstances, may become liable for goods sold and delivered to them. The persons embraced in this exception are infants, lunatics, and intoxicated persons.

The obligation of such persons to pay for necessaries furnished to them is, however, quasi contractual, rather than contractual, as is shown by the fact that it is generally held that they are liable to pay, not the price, but their reasonable value."

CAPACITY OF INFANTS.

8. Contracts of sale and purchase by an infant are voidable, at his option, either before or after he has attained his majority. The contract ceases to be voidable if it be ratified upon the attainment of his majority.

The general rule of the common law is that an infant's contract is voidable, at his option, either before or after he has attained his majority." Thus an infant may maintain an action

71 Chalm. Sale of Goods Act (6th Ed.) 11.

72 See Sales Act, § 73.

78 In re Rhodes, 44 Ch. Div. 94; Clark, Cont. (2d Ed.) 155, 547. 74 Post, p. 21.

75 Gibbs v. Merrill, 3 Taunt. 307; Hunt v. Massey, 5 Barn. & Adol. 902; Holt v. Clarencieux, 2 Strange, 938; Zouch v. Parsons, 3 Burrows, 1794; King v. Inhabitants of Chillesford, 4 Barn. & C., at page 100; Tucker v. Moreland, 10 Pet. (U. S.) 64, 9 L. Ed. 345. See Pol. Cont. 52 et seq. Emancipation by his father does not enlarge the in

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on the contract against the seller during infancy." He may buy and sell, but either sale" or purchase 18 may be avoided by him, and if he avoids either he may recover back the consideration." In case of avoidance he must, however, return the consideration which he received, if he still has it; though if he has consumed, lost, or sold it during minority, he may nevertheless avoid the purchase or sale. Such at least is the law generally recognized in America,1 though in England his right

fant's liability. Mason v. Wright, 13 Metc. (Mass.) 306. See Clark, Cont. (2d Ed.) 144.

76 Warwick v. Bruce, 2 Maule & S. 205; Holt v. Clarencieux, 2 Strange, 937.

77 Shipman v. Horton, 17 Conn. 481; Stafford v. Roof, 9 Cow. (N. Y.) 626; Carr v. Clough, 26 N. H. 280, 59 Am. Dec. 345; Towle v. Dresser, 73 Me. 252; Bloomingdale v. Chittenden, 74 Mich. 698, 42 N. W. 166.

78 Riley v. Mallory, 33 Conn. 201; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Whitcomb v. Joslyn, 51 Vt. 79, 31 Am. Rep. 678; Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; McCarthy v. Henderson, 138 Mass. 310; Robinson v. Weeks, 56 Me. 102; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476.

7 Cases cited supra, notes 77, 78.

80 Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Whitcomb v. Joslyn, 51 Vt. 79, 31 Am. Rep. 678; Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Walsh v. Young, 110 Mass. 396; Morse v. Ely, 154 Mass. 458, 28 N. E. 577, 26 Am. St. Rep. 263; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; Carpenter v. Carpenter, 45 Ind. 142; Shirk v. Shultz, 113 Ind. 571, 15 N. E. 12; Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Brantley v. Wolf, 60 Miss. 420; Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476; MacGreal v. Taylor, 167 U. S. 688. 17 Sup. Ct. 961, 42 L. Ed. 326; Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. Rep. 665; Ridgeway v. Herbert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St. Rep. 464; White v. Cotton-Waste Corp., 178 Mass. 20, 59 N. E. 642; Gillis v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 265.

Where an infant bought of another infant and paid the price, and after the seller had spent the money the buyer disaffirmed the contract and brought an action to recover the money paid, both in con. tract and tort, it was held that the defendant's plea of infancy was a defense to the count in contract, and there was no dealing with the money by the defendant which could constitute a conversion. Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. R. A. 755.

81 The decisions on this point, however, are not uniform. See Heath v. Stevens, 48 N. H. 251, where it is held that the infant's

to avoid an executed sale and recover back the price is denied. 82

Ratification.

The contract of an infant ceases to be voidable if it be ratified by him after attaining his majority. By statute in some

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right to avoid the contract is conditional on his restoring what he received in specie, or, if not, on his accounting for the value of it. See, also, Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Bartlett v. Bailey, 59 N. H. 408; Riley v. Mallory, 33 Conn. 201; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Stack v. Cavenaugh, 67 N. H. 149, 30 Atl. 350.

Where the personal contract of an infant is fair and reasonable, and free from fraud or undue influence, and has been wholly or partly performed on both sides, so that the infant has enjoyed the benefits of it, but has parted with what he has received, or the benefits are of such a nature that he cannot restore them, he cannot recover back what he has paid. Johnson v. Insurance Co., 56 Minn. 365, 57 N. W. 934; Alt v. Graff, 65 Minn. 191, 68 N. W. 9.

Where an infant who had purchased a bicycle on installments, and paid part of the price, under an agreement that title should not pass from the seller until all installments were paid, afterwards disaffirmed the contract, she was not entitled to recover the installments paid, since as to them the contract was executed, though the contract in its entirety was executory. Rice v. Butler, 160 N. Y. 578, 55 N. E. 275, 47 L. R. A. 303, 73 Am. St. Rep. 686. Cf. Gillis v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 265; Clark, Cont. (2d Ed.) 171.

82 "If an infant pays money under a contract, in consideration of which it is wholly or partly performed by the other party, he can acquire no right to recover the money back by rescinding when he comes of age." Pol. Cont. 60; Leake, Cont. 553. The authorities principally relied on are Holmes v. Blogg, 8 Taunt. 508, which is generally repudiated by the American cases above cited, and Ex parte Taylor, 8 De Gex, M. & G. 258. See, also, Williams v. Pasquali, Peake, Add. Cas. 197, per Kenyon, C. J.; Valentini v. Canali, 24 Q. B. Div. 166. In Ex parte Taylor, Lord Justice Turner said: "If an infant buys an article which is not a necessary, he cannot be compelled to pay for it; but if he does pay for it during his minority he cannot, on attaining his majority, recover the money back."

By the infants' relief act of 1874 (St. 37 & 38 Vict. c. 62) contracts entered into by infants supplied or to be supplied, other than for necessaries, are void. Benj. Sales (7th Am. Ed.) § 28.

83 Williams v. Moor, 11 Mees. & W. 256; Anson, Cont. 105; Clark, Cont. (2d Ed.) 160.

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