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executory sale. Upon B's return from abroad he can enforce it. Should B die abroad before returning the contract would be discharged.

157. A sells B his crop of growing corn for $1,000, payment on delivery. This is an executed sale and the risk of loss is assumed by B.

158. A sells B a thousand bushels of wheat which he stored in an elevator in St. Paul two weeks ago. Without the knowledge of either party, however, the wheat was destroyed by fire the day after it was stored. The contract is void and the loss falls on A.

159. A deposits his watch with B as security for a loan. This is a bailment and not a sale.

160. A and B trade horses. This is a barter or exchange and not a sale.

161. A steals B's watch and transfers it to C, an innocent person, for $10, and C transfers it to D for $15. The title to the watch remains in B.

162. A breaks into B's house and steals $10 in money, a negotiable note signed by B and payable to bearer and a watch. A pays the $10 to C for a suit of clothes and the note to D for a cow, and sells the watch to E for $50. C and D are innocent parties. B cannot recover the money or the note. E, however, has not acquired title to the watch and B can recover it in a suitable action.

163. A agrees to sell B 500 bushels of potatoes, which he intends to go into the market and buy, at 50c per bushel. This is a valid executory sale.

164. A, an automobile manufacturer, accepts an oral order from B to construct for him an automobile according to certain specifications. When the machine is ready for delivery B refuses to accept it. A sues him for the contract price and B pleads the statute of frauds.

The decisions upon this point are not harmonious; there are three distinct views. The English view is that the contract is for the sale of a chattel and not for work

and labor, and therefore B's plea is a good defense. The Massachusetts view is, that since the contract is for a chattel made to a special order, it is for work and labor, and therefore B's plea is not a good defense. This view is sustained by the Uniform Sales Act which has recently been adopted in several states, including New York.

In some states, including Illinois, the seventeenth section of the statute of frauds has been abolished by statute.

EXAMPLES

165. A purchases six cows from B at $50 each. A signs the memorandum of agreement but B does not. The statute of

frauds is a good defense to B but not to A.

166. A orally agrees to pay B $10 for a certain patch of growing cabbages. B gathers the crop when ripe and refuses to abide by his agreement. A sues him and he pleads the statute of frauds. B's plea is not a good defense. The cabbages are emblements and not an interest in land.

167. A orally agrees with B to pay him $25 for a certain field of growing hay. B gathers the hay and refuses to abide by his agreement. A sues him and he pleads the statute of frauds. B's plea is a good defense. The hay is an interest in land.

168. In the question next preceding, assume that the contract specifies that title to the hay is not to pass until the hay is severed. In such case the hay is personalty and B's plea is not good.

169. A orally purchases from B 500 bushels of corn at 60 cts. per bushel. B delivers 40 bushels at A's warehouse and

B

A accepts it. Subsequently A refuses to accept any more. sues him on the contract and he pleads the statute of frauds. A's plea is not a good defense. His acceptance and receipt of part of the corn takes the contract out of the statute.

170. A orally agrees with B to sell him all the standing trees

on a certain tract of land for $30. Subsequently A repudiates the agreement and forbids B to enter upon the land. Since the trees constitute an interest in land, the contract falls within the fourth section of the statute of frauds and therefore is not enforcible. Moreover, if B should enter upon the land after being forbidden to do so he would be liable for trespass.

The following is a form of the usual bill of sale:

Know all Men by these Presents, That I, GEORGE NELSON, of the City, County and State of New York, party of the first part, for and in consideration of the sum of FIVE HUNDRED ($500) DOLLARS lawful money of the United States, to me in hand paid, at or before the ensealing and delivery of these presents by THOMAS WEBSTER, of the same place, party of the second part, the receipt whereof is hereby acknowledged, have bargained and sold and by these presents do grant and convey unto the said party of the second part, his executors, administrators and assigns all and singular the furniture, carpets, rugs, curtains, and portieres contained in the dwelling-house known as No. 285 Belwood Road, in the above mentioned borough, said chattels being more particularly described in the schedule hereto annexed and made a part hereof. To have and to hold the same unto the said party of the second part, his executors, administrators and assigns for ever. And I do for myself, my heirs, executors and administrators, covenant and agree, to and with the said party of the second part, to warrant and defend the sale of the said furniture and other fittings hereby sold unto the said party of the second part, his executors, administrators and assigns against all and every person and persons whomsoever.

In Witness whereof, I have hereunto set my hand and seal the sixth day of February in the year one thousandnine hundred and ten.

Sealed and delivered in the presence of

JOHN WILSON.

GEORGE NELSON, [Seal.]

SCHEDULE OF THE FOREGOING BILL OF SALE: One mahogany table, one large chair, three small chairs, one large divan, one Brussels carpet, 14'x12' 4", one Brussels carpet, 9'x10', one large rug, 10'x12', two small rugs 4'x6', one small rug, 3'x5', four pairs lace curtains, two pairs heavy portieres.

State of New York,
City of New York,

County of New York.

GEORGE NELSON.

On the sixth day of February in the year one thousand nine hundred and ten before me personally came GEORGE NELSON to me known, and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged that he executed the same.

W. R. ELWOOD,

Notary Public, New York County.

168. When title passes.-This is a very important branch of the law of sales. Before the title has passed the risk or loss is on the vendor; his creditors may attach the property; he is entitled to any gain or increase that may arise; he may sue in trover or replevin for unlawful detainer or conversion, and in case of his death the property descends to his executor or administrator. From the moment title passes all these incidents pass to the vendee.

169. Intention of the parties governs.-In determining whether title has passed or not the controlling test is the intention of the parties. This was said by Justice Wagner: 1

The question of transfer to and vesting title in the purchaser always involves an inquiry into the intention of the contracting parties; and it is to be ascertained whether their 1 Ober v. Carson, 62 Mo. 214.

negotiations and acts show an intention on the part of the seller to relinquish all further claims as owner, and on the part of the buyer to assume such control with all liabilities.

In some cases this intention is clearly and unequivocally expressed while in other cases it is not. In the latter cases it must be gathered from the terms of the contract and from the surrounding circumstances.

When the subject-matter of the sale is in a deliverable condition and the price is paid or credit expressly given, title passes at once even though delivery is to be made subsequently. When the sale is for cash many decisions hold that a presumption arises that title passes at once even though the price has not been paid. On the other hand, many decisions hold that unless the vendor delivers the property without requiring immediate payment title does not pass until payment is made.

When the thing sold is not in a deliverable condition, as where it is to be weighed, measured or separated from a larger mass, a presumption arises that the intention is not to pass title until the property is put in a deliverable condition.

170. Sale, subject to conditions.-Goods are sometimes sold subject to a condition precedent. In such case the title does not pass until the condition is performed. Thus, when goods are sold "on approval," title does not pass to the buyer until he has expressly or impliedly signified his approval. His approval will be implied where he retains the goods for a longer period than that determined upon, or for an unreasonable time where no period is fixed. It also will be implied where he sells the goods.

Sales are sometimes made subject to a condition subsequent. In such case the buyer is given an option to return them if not satisfactory. Such a transaction is

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