receipt to satisfy the statute. Earnest or is not sufficient to satisfy the statute, unless the wharfinger had accepted the order of the consignor, and agreed to hold the goods to the order of the purchaser (a). The delivery and receipt of the bill of lading in transitu is not a sufficient delivery and receipt of the goods themselves, unless the purchaser has exercised a dominion and ownership over it (b). The delivery of goods at a wharf would not be an acceptance and receipt within the statute (c). The payment of any sum, however small, in earnest to bind part payment. the bargain, or in part payment, may be sufficient; but the part payment must take place either at or subsequent to the time when the bargain was made (d). What delivery will satisfy the statute. What acceptance will satisfy the statute. Acceptance by a carrier. Sales by auction. In order to satisfy the statute of frauds there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with an intention of taking possession of them as owner (e). When goods are sold by sample, and the sample delivered is part of the bulk, there will be part delivery. Not so, however, when the delivery of the sample is a collateral thing (ƒ). That the acceptance and receipt may dispense with the necessity of a written memorandum of the contract there must be a final and absolute appropriation by the purchaser either of the whole articles sold or of a part thereof (g). There is no such acceptance unless the vendee has had an opportunity of judging whether the goods sent corresponded to the order (h). Acceptance and receipt by a carrier or wharfinger, or other forwarding agent appointed by the purchaser, are not acceptance and receipt by the vendee sufficient to satisfy the statute, unless the purchaser by his dealing with the carrier, or forwarding agent, causes him to keep the goods on his (the purchaser's) behalf (i). Sales by auction are within the statute of frauds, and a memo (a) Farina v. Home, 16 M. & W. 119. (b) Meredith v. Meigh, 2 E. & B. (c) Hart v. Bush, 22 Jur. 633. (e) Phillips v. Bistolli, 2 B. & C. (f) Kleneth v. Surrey, 5 Esp. 267; Hinde v. Whitehouse, 7 East, 558; Stokes v. Moore, 1 Cox, 222. (g) Morton v. Tibbett, 15 Q. B. 428; Hunt v. Hecht, 8 Exch. 814. (h) Curtis v. Pugh, 16 L. J. Q. B. 199. (2) Coats v. Chaplin, 3 Q. B. 492. randum of the bargain not annexed to the catalogue is not sufficient to satisfy the statute (a). The auctioneer effecting a sale by auction, or an auctioneer's clerk taking down the bidding in the presence of the purchaser, is the authorised agent of both the vendor and purchaser, and his signature in the books binds both parties, and is sufficient to satisfy the statute (b). When, however, the sale is over, the same principle does not apply, and the auctioneer is no longer the agent of both parties, but of the seller only, and his signature cannot bind the buyer (c). British Colonies.-In Jamaica, Tortola, Antigua, Montserrat, Dominica, Tobago, Grenada, St. Vincent, Bermuda, Upper Canada, Nova Scotia, and Prince Edward's Island, the statute of frauds is in force as part of the English statute law received on the establishment of these colonies. It has also been adopted in Barbadoes by § 226, in Bahamas by the Court Act, 25th clause; in New Brunswick, by the 26 Geo. 3, c. 14; and in Nevis, by 6 Geo. 2, c. 12, by Acts of their own legislatures. SECTION III. EFFECTS OF THE CONTRACT ON THE PROPERTY SOLD. When by a contract of sale the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after the delivery of the goods. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the vendee (d). In order, however, that the property may pass by the contract, the article must be specific and ascertained. When something remains to be done on the part of the seller before the goods are to be delivered, as when they are to be numbered, weighed, (a) Kenworthy v. Schofield, 2 B. & C. 945. (b) Hinde v. Whitehouse. 7 East, 558; Emmerson v. Heelis, 2 Taunt. 38. (c) Meux v. Carr, 1 H. & N. 484. Effect of con tract as to possession. Effect of the risk. or measured, or when the quantity sold must be separated from the bulk the property in them, does not pass to the purchaser until what remains to be done is complete (a). By the common law of Scotland the right of property in the goods sold did not pass to the buyer by the mere contract of sale, but remained with the seller until the goods were delivered. Thence, if before delivery of the goods to the buyer, the seller sold and delivered them to a third party, the first buyer had no remedy against such third party unless he established fraud or collusion. By a recent statute, however, it was enacted, that where goods sold remain in the hands of the seller, it shall not be competent for any creditor of such seller to attach such goods so as to prevent the purchaser to enforce the delivery of the same (b). When the sale is perfect, and nothing remains to be done by contract as to the seller before the goods are to be delivered, the right of property in the goods having passed to the purchaser without delivery, if they are injured or destroyed after the sale, the loss would fall upon the purchaser, and the seller would be entitled to payment of the price (c). Where the property has not passed to the purchaser, the goods still remain at the risk of the seller, and if destroyed, the seller will not be entitled to payment of the price. Whatever happens to the goods before the sale affects the seller only, and whatever happens to them after the sale affects the buyer. FOREIGN LAWS ON THE REQUISITES AND FORM OF THE CONTRACT OF SALE. France. Sale is a contract by which one binds himself to deliver a thing, and the other to pay for it. It may be made by deed or by private contract. A sale may be pure and simple, or under a condition either suspensive or absolute. It may also have for its object two or more things alternately. In all such cases its effect is regulated by the general principles of contracts. A sale is perfected between the parties, and the ownership passes to the buyer, so soon as the parties have agreed as to the (a) Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 219; Simmons v. Swift, 5 B. & C. 857; Wallace v. Breeds, 13 East, 522; Dixon v. Yates, 5 B. & Ad. 340. (b) 19 & 20 Vict. c. 60, s. 1. (c) Tarling v. Baxter, 6 B. & C. 360; Whitehouse. Frost, 12 East, 614; Alexander v. Gardner, 1 Bing. N. C. 671; Martindale v. Smith, 1 Q. B. 391. thing and the price, although the thing has not yet been delivered or the price paid. on the transfer of property. Wherever merchandises are sold, not in the lump, but by Effect of sale weight, by number, or by measure, the sale of them is not perfected, and the things sold continue at the risk of the vendor until such time as they are weighed, counted, or measured; but the buyer is entitled to the delivery of them, or to damages, in case of non-performance of the engagement. If, on the contrary, the merchandise has been sold in the lump, the sale is perfected, although the merchandise has not been weighed, counted, or measured. As regards wine, oil, and other things, which persons are accustomed to taste before buying, the sale is not perfected so long as the buyer has not tasted and approved them. A sale made upon trial is always presumed as made under a suspensive condition. If something has been paid in earnest, each of the contracting parties is at liberty to depart from the promise; he who has given it, by losing the money given; and he who has received it, by restoring two-fold. A promise of sale is as good as a sale, where there is a reciprocal consent of the parties as to the thing and the price. The price of sale must be determined and specified by the The price. parties. The price must be reasonable, but it is difficult to define what is the just value of a thing. Generally, a just price is that at which things of a similar nature and quality are sold in the same place, at the same time, under the same circumstances, and to any person, without having regard to its extraordinary valuethat is, to the price which might be obtained in certain cases and under special circumstances. It may, nevertheless, be left to the arbitration of a third person. If the third person cannot or will not value it, there is no sale. The expenses of the deed, and other accessories to a sale, are at the charge of the buyer (a). Everything which is in commerce may be sold, unless particular laws have prohibited the alienation of it. The sale by a person of a thing belonging to another is null; but it may give a right to the buyer to sue for damages where he was ignorant that the thing belonged to another. The sale of moveable property belonging to another by the possessor of it would pass a valid title to one who believed him (a) French Civil Code, §§ 1582 to 1593. As respects moveable property, possession gives title. Proof of the contract. must be in existence. to be the owner of it, or even to a buyer who was not ignorant that the seller was not the owner, provided the latter has acted in good faith, and thought that the seller had a right to sell. The owner of the thing sold and delivered by a bailee or a borrower to a third person bona fide, has no right to claim the article from the latter, and far less from another person to whom the latter may have sold it. If at the moment of sale the thing sold was lost entirely, the sale would be null. If a part only of the thing was lost, it is at the option of the purchaser to abandon the sale, or to demand the part preserved on having the price determined by public auction (a). Purchases and sales may be proved by public deeds, by private contract, by the broker's note duly signed, by the books of the parties, and by parol evidence when the tribunal thinks it admissible. Nevertheless, a sale of patent right must be made by deed; the sale of a ship must be made in writing; public funds can only be sold by the instrumentality of exchange brokers; sale of goods made voluntarily by public auction can only be made by auctioneers where they are established, or by notaries in other places (b). United States of America.-A sale is a contract for the transfer of property from one person to another for a valuable consideration, and three things are requisite to its validity; namely, the thing sold, which is the object of the contract, the The thing sold price, and the consent of the contracting parties. 1. The thing sold must have an actual or potential existence, and be capable of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement. If the subject-matter of the sale be in existence, and only constructively in the possession of the seller, as by being in the possession of his agent or carrier abroad, it is nevertheless a sale, though a conditional or imperfect one, depending on the future actual delivery. But if the article intended to be sold has no existence, there can be no contract of sale. If part of the thing sold be destroyed at the time, it is at the option of the buyer to abandon the sale, or to take the part preserved on a reasonable abatement of price. So, when the parties enter into an agreement for sale and purchase and the consideration partially fails, the buyer has a right (a) French Civil Code, § 2229. (b) French Code of Commerce, § 109. |