to consider the contract at an end, and recover back any money which he had paid in part performance of the agreement.

Effect of a failure of title.

2. A substantial error between the parties concerning the Substantial error destroys subject-matter of the contract, either as to the nature of the the contract. article or as to the consideration, or as to the security intended, would destroy the consent requisite to its validity. In the case of a purchase of land where the title in part fails, the Court of Chancery will decree a return of purchase money, even after the purchase has been carried completely into execution by the delivery of the deed and payment of the money, provided there had been a fraudulent misrepresentation as to the title. But if there be no ingredient of fraud, and the purchaser is not evicted, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase and claiming restitution of the money. The party is remitted to his remedies at law, on his covenants to insure the title. A failure of title in sales of land remits the party back to his covenants in his deed, and if there be no ingredient of fraud in the case, and the 'party had not had the precaution to secure himself by covenants, he has no remedy for his money, even in a failure of title. This rule applies equally to chattels when the vendor sells without any averment of title, and without possession. In sales of chattels the purchaser cannot resist payment in cases free from fraud, while the contract continues open and he has possession. In respect to land the same rule has been considered to be the law in New York. In South Carolina their courts of equity will allow a party, suffering by the failure of title, in a case without warranty, to recover back the purchase money in the sale of real as well as personal estates. The rule is that a partial, as well as total Failure of failure of the consideration, may be given in evidence by the maker of a note to defeat or mitigate, as the case may be, a recovery. In Indiana, by statute of 1831, in actions upon special- Indiana. ties or other contract, excepting conveyances of real estate and paper negotiable by the law merchant, the defendant may allege the want or failure of consideration, in whole or in part. He may allege fraud, or breach of warranty, and if he shows that the article was of no value, or had been returned or tendered, he destroys the action. In North Carolina, a total failure of North Caroconsideration may be given in evidence in a suit on a promissory

consideration.

lina.

Illinois.

Louisiana.

note, though a partial failure cannot, and the relief is by a distinct suit. In equity, as well as at law, the defendant, for the purpose of preventing circuity of action, may show, by way of defence, in order to lessen or defeat the recovery, a total or partial failure of the consideration, as the case may be, when sued for the consideration of a sale, or upon the security given for the purchase money. In Illinois, by statute a want of

title in the vendor of lands may be set up by the vendee on the note given for the purchase money as a failure of consideration. So the true value of the articles sold may be shown in reduction of the price, in cases of sales with warranty, or representation, as well as in cases of fraud, and this is allowed to avoid circuity of action. In Louisiana, the failure of consideration, either in whole or in part, in a contract of sale, has been held to be a defence, as far as it goes, on the principle that matters which diminish, as well as those which destroy the Pennsylvania. demand, may be pleaded in defence of the suit. In Pennsylvania, the discovery by the vendee before payment of incumbrances, is held to be a valid defence in a suit for the purchase money to the amount of the incumbrance where there existed a general or special warranty. The defendant may, by way of defence, show a breach of warranty as to the quality of articles sold, without either returning them or giving notice to the vendor to take them away. In Virginia, it was provided by statute in 1830, that the defendant might allege, by way of plea, not only fraud in the consideration or procurement of any contract, but any such failure in the consideration thereof, or any such breach of warranty of the title or soundness of personal property, as would entitle the defendant in any form of action. to recover damages at law, or to relief in equity. In Ohio, the rule is, that the fraud must go to the whole consideration, or the payment of a note cannot be avoided at law upon the ground of fraud. In Kentucky is the same law, and a plea going only to a part of the consideration is bad. If the defect of title, whether of lands or chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. In South Carolina, it has been held, that if the deficiency in the quantity of land be so great as to defeat the object of the

Virginia.

Ohio.

Kentucky.

South Carolina.

purchase, the vendee may rescind the bargain; and if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price; and this doctrine was applied equally to defects in the quantity and quality of land, and for unsoundness and defects in personal property.

3. The price is an essential ingredient in the contract of sale, The price. and it must be fixed or be susceptible of being ascertained in the mode prescribed by the contract, without further negotiation between the parties.

consent.

4. Mutual consent is requisite to the creation of the contract, Mutual and it becomes binding when a proposition is made on one side and accepted on the other. The negotiation may be conducted by letter, as is very common in mercantile transactions, and the contract is complete when the answer containing the acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence after the receipt of the letter containing the proposal and before any intimation is received that the offer is withdrawn, On the other hand, if A makes an offer to B, and gives him a specific time to answer, A may retract before the offer is accepted, on the ground that until both parties are agreed it is no contract, and either of them has a right to recede, and one party cannot be bound without the other (a).

The statute of frauds has been frequently re-enacted in New York, and is held to be in force in the several states. The Massachusetts Revised Statutes of 1835; the Revised Laws of Illinois of 1833; of Indiana, 1838; of Connecticut, 1838; and of New Jersey, 1794, follow closely the English statute of frauds (b).

contract.

British India.-Sale is a mutual and voluntary exchange of Nature of the property for property. A contract of sale may be effected by the express agreement of the parties or by reciprocal delivery. Sale is of four kinds; it may be a commutation of goods for goods; of money for money; of money for goods, and of goods for money. Sales are either absolute or conditional, imperfect or void. An absolute sale is that which takes effect immediately; a conditional sale is that which is suspended on the consent of the proprietor. An imperfect sale is that which takes effect on seisin. A void sale is that which can never take effect, where the articles given are of no legal value. The considera

(a) Kent's Commentaries, Vol. 2, p. 602, and following. (b) Ibid. p. 669.

Warranty from defects implied.

tion may consist of whatever articles bearing a legal value the seller and purchaser may agree upon. There must be two parties to every contract of sale, and it is sufficient that the parties have a sense of the obligation they contract. A minor, with the consent of his guardian, or a lunatic in his lucid interval, may be contracting parties. It is essential to the validity. of every contract of sale that the subject of it and the consideration should be so determinate as to admit of no future contention regarding the meaning of the contracting parties. It is also essential that the subject of the contract should be in actual existence at the period of making the contract, or that it should be susceptible of delivery either immediately or at some future definite period. When payment is deferred to a future period, it must be determinate, and cannot be suspended on an event the time of the occurrence of which is uncertain, though its occurrence is inevitable. A warranty as to freedom from defect and blemishes is implied in every contract of sale. And where the property sold differs either with respect to quality or quantity from what the seller had described it, the purchaser is at liberty to recede from the contract. When the property has not been seen by the purchaser, nor a sample, he is at liberty to recede from the contract, provided he may not have exercised any act of ownership. But though the property has not been seen by the seller, he is not at liberty to recede from the contract, except in a sale of goods for goods, where no option was stipulated. A purchaser who may not have agreed to take the property with all its faults, is at liberty to return it to the seller on the discovery of a defect of which he was not aware at the time of the purchase, unless while in the hands of the purchaser it received a further blemish; in which case he is only entitled to compensation. But, if the purchaser have sold such faulty articles to a third person, he cannot exact compensation from the original seller, unless he was precluded from returning it to the original seller. In a case where articles are sold, and are found on examination to be faulty, complete restitution of the price may be demanded from the seller, even though they have been destroyed in the act of trial, if the purchaser has not derived any benefit from them; but if the purchaser had made beneficial use of the faulty articles, he is only entitled to proportionate compensation. If a person sell an

article which he had purchased, and be compelled to receive back such article, and to refund the purchase money, he is entitled to the same remedy against the original seller, if the defect be of an inherent nature. If a purchaser, after becoming aware of a defect in the article purchased, make use of the article, or attempt to remove the defect, he has no remedy against the seller, such act on his part implying acquiesence. It is a general rule, that if the articles sold are of such a nature as not easily to admit of separation or division without injury, and part of them, subsequently to the purchase, be discovered to be defective, or to be the property of a third person, it is not competent to the purchaser to keep a part and to return a part, demanding a proportional restitution of the price for the part returned. In this case he must either keep the whole, demanding compensation for the proportion that is defective, or he must return the whole, demanding complete restitution of the price. It is otherwise where the several parts may be separated without injury. The practices .of forestalling, regrating, and engrossing, and of selling on Friday after the hour of prayer, are all prohibited, though they are valid (a).

Sales on inspection and on sample.

Germany.-An offer of sale by circulars or prospectuses is not a binding offer. A purchase on inspection or trial is conditional on such inspection and acceptance of the article. The purchaser is not bound till he has accepted it; but the seller ceases to be bound, if the purchaser does not signify his acceptance at the stipulated or usual time. And if the goods have already been delivered, the silence of the purchaser, after the expiration of such time, is considered as an acceptance. A sale on sample is not conditional, but the seller binds himself to deliver the goods equal to the sample. The delivery of the Delivery. goods must be made at the place named in the contract, or at such a place as is implied from the nature of the contract or the meaning of the agreement. If nothing is provided on the subject, the delivery of the goods must be made at the place where the seller has his warehouse, or, in want of it, where he resided at the conclusion of the contract. The price must be paid Price. on delivery, unless otherwise provided. The purchaser must make the payment at his own risk and expense, and at the warehouse or residence of the seller. The seller is bound to take care

(a) Moohummadan Law, by W. H. Macnaghten.