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land he intends to buy, nor of the earnings of a prospective employment.
Although an executed sale of a chattel in which the seller has no actual or potential ownership is invalid, if he subsequently acquire ownership in it the beneficial interest will vest in his vendee and will be recognized by a court of equity.
It also should be observed that a person may make an executory sale of a chattel which he does not own. Thus, he may make an executory sale of 500 bushels of corn which he intends to buy. Such a contract is perfectly valid. When the subject-matter of the executory sale is a specific chattel, its destruction before the time of delivery discharges the contract. In such case the buyer may recover the amount paid.
An incorporeal right may be the subject of sale. Thus, a person may make an executed sale of a trademark, a seat in a stock exchange, a ferry franchise, a license to sell certain patented articles or to print certain copyrighted productions, the privilege of mining, and even knowledge of the existence and location of an oil well."
Whether an expectancy based upon chance may be the subject of sale or not is a question upon which the authorities are not agreed. Lord Bacon says: there be a devise of a term to A for life, remainder to B, B cannot in the lifetime of A assign or grant over his interest, because he has but a bare possibility, for A may outgrow the number of years.” In this country, however, in the absence of fraud or inadequate consideration, a court of equity, at least, would uphold such a sale. Where a fisherman sells his next catch of fish the sale has been held invalid for uncertainty as to the subject-matter. Some contend, however, that such a transaction is rather one for work and labor than one of sale.
1 Reed v. Golden, 28 Kan. 632, 42 Am. Rep. 180. 2 Bacon's Abridgment, Grant (D) 3.
165. Statute of Frauds.-At common law an oral contract for the sale of personalty was valid irrespective of the price. The seventeenth section of the English Statute of Frauds, however, provides: that
No contract for the sale of goods, wares, and merchandise for the price of ten pounds sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum of said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized.
Similar statutes obtain in all the states of the Union except Illinois and Delaware. The limit of price ranges from $30 to $300, except in Iowa and Florida, where the amount is unlimited, the former amount being the limit in Maine, Missouri, New Jersey and Arkansas, and the latter amount in Utah and Montana. In most of the states the limit is $50.
When the subject-matter of a sale includes several different articles whose aggregate price exceeds the limit provided by statute, such sale is within the statute. The test is, whether or not the several purchases fairly constitute one transaction.
The term "goods, wares and merchandise,” is given a broad meaning by the courts of the United States (but not of England), and includes choses in action which are commonly the subject of sale, such as negotiable instruments, stocks, etc.
1 Low v. Pew, 108 Mass. 347, 11 Am. Rep. 357.
166. Sales of goods to be manufactured.—Whether the statute applies or not to the sale of a thing which is to be manufactured, is a question upon which the decisions are not harmonious. According to the English rule it does; and some of the American decisions are in harmony with this rule. In some states, including Massachusetts, the courts hold that the statute applies, provided the article sold falls within the scope of those which the seller habitually manufactures in the course of his business. The well-known New York rule providing that the statute applies to goods partly finished but not to goods not in existence has been changed in that state by a recent statute to conform to the Massachusetts rule.
167. Satisfaction of the statute.-- When the statute is applicable to a particular case, one of three things is essential to satisfy it. There must be (1) part payment, or (2) acceptance and receipt by the buyer, or (3) a written note or memorandum of the contract signed by the parties or their authorized agents.
The part payment, to be effectual, must be material, and the amount received must be accepted in part payment of the price. Under the New York statute the part payment must be made when the contract is entered into or the terms of the contract must be reaffirmed when the part payment is made.
The terms “acceptance” and “receipt” have distinct meanings, and both are essential to satisfy this exception. Either may precede the other. The former signifies assent by the buyer, the latter delivery with the seller's consent.
It should be observed, however, that a physical delivery is not always essential. Circumstances may render such a delivery unnecessary. This is true where the goods sold are in the actual possession of the seller and the parties agree that he hold them as bailee of the buyer; or, where they are in the possession of the buyer who holds them as bailee of the seller and the parties agree that the buyer hold them henceforth as owner; or, where they are in the possession of some third party who holds them as bailee of the seller and the parties to the sale agree that the third party hold them henceforth as bailee of the buyer; or, where the goods are not in the actual possession of anyone, and the parties agree that the constructive possession of them be transferred to the buyer, no physical delivery is essential.
The written note or memorandum of the contract may be informal. It must contain, however, the terms and subject-matter of the agreement and the names or descriptions of the parties. It does not have to be signed by both parties to the contract, but must be signed by the party sought to be charged, or by his lawfully authorized agent. The signature may be by mark or initial and may be printed or in writing. It also may be in any part of the written note or memorandum, provided the statute does not expressly require that it be "subscribed.” The note or memorandum may be made at the time of the sale or at a later date. It
be contained in separate papers constituting a connected series, in which case each of the separate papers must be signed, or referred to in one which is signed or attached to it.
148. A says to B, “You may have my horse for $200.” B replies, “I accept your offer.” This is an executed sale.
149. A says to B, “I will sell you my colt when he is three years old for $200.” B replies, “I accept your offer.” This is an executory sale. Title has not passed. A retains the risk of loss.
150. A says to B, “You may have that piano for $200, and I'll deliver it at your home to-morrow, payment on delivery." B replies, "I accept your offer.” The sale is executed. Title has passed to B who assumes the risk of loss. The contract, however, is executory since something remains for each party to do.
151. A says to B, “I will sell you my watch for $10 and deliver it to you to-morrow after I have had a new mainspring put in it, payment on delivery.” Be replies, “I accept." Both the contract and the sale are executory. Title to the watch remains in A until delivery.
152. A says to B, “When I have finished my fall ploughing, which will require about a week, I will sell you my team for $400.” B replies, “I accept." The next day the horses are accidentally killed. The loss falls upon A, since the title is in him, and the contract is discharged.
153. A, who owns a flock of sheep, agrees with B to sell him all the wool which will grow on them during the next three months for $50. This is a valid sale since the wool which is yet to grow has a potential existence.
154. A agrees to sell B ten tons of hay from his barn for $150, payment to be made in thirty days, delivery the day after the agreement. B accepts, but before delivery says he will not go on with the agreement. B is liable. Title has passed. In cases where goods are sold not by a specific description, but in quantity, and the general mass is specified, it is possible for title to pass without actual delivery.
155. A, who has made up his mind to buy B's flock of sheep, agrees to sell them to C for $100. The agreement is invalid. A does not own what he agrees to sell. In case of breach neither party would be liable in damages. It should be observed, however, that in case A should buy the sheep a court of equity would recognize in C a beneficial interest in them.
156. A agrees in writing to sell B a certain farm for $10,000 when B returns from a trip abroad. This is a valid