it would put an end to half the contracts made in the course of trade. 2.) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3.) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods. For instance, crops may be sold which are to be grown from specific seed, or on specific land, and such a contract may be subject to some condition expressed or implied, e.g., that the parties shall be excused if, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. Example.-A. agreed to sell to B. 200 tons of potatoes grown on specific land in a certain season; disease spoilt all but 80 tons, which were delivered. No action lay against A. for non-delivery of the remainder, as it was a specific crop; the contingency upon which the contract for 200 tons was made and the seller depended did not happen (Howell v. Coupland1). 2 For a case where the contractor was held absolutely bound by his promise, though performance was impossible, see Hills v. Sughrue, supra (guano at Ichaboe), and compare Lord Clifford v. Watts, where it was held a good defence to an action for not digging the contract weight of clay in each year, that there was not at any time so much clay under the land, and performance was 1 L. R. 9 Q. B. 462; affirmed 1 Q. B. D. 258; 46 L. J. Q. B. 147; 33 L. T. 832; 24 W. R. 470. [1876.] 215 M. & W. 253. [1846.] 3 L. R. 5 C. P. 577; 40 L. J. C. P. 36; 22 L. T. 717; 18 W. R. 925. [1870.] impossible, though the defendant had no means of knowing this when the covenant was made, which was only a subsidiary provision fixing the rate at which it should be worked." It is a question of intention: see Pollock on Contracts, 4th ed., p. 373. See section 6, post (Goods which have perished). 6. Where there is a contract for the sale of Goods which have perished. specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void. ខ This section contains the result of the decision in Couturier v. Hastie1 (see section 5 (1), Subject-matter, example). Such a contract is not one for "present or future goods." The principle is that laid down by Blackburn, J., in Taylor v. Caldwell, where he says, in giving the judgment of the Court, "There seems no doubt that where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burthensome, or even impossible." (Hills v. Sughrue), supra, section 5 (1), (guano at Ichaboe). A positive contract to do a thing" is not the same as a positive contract to sell specific goods, which is clearly made upon the assumption that at the time of the bargain “there is an existing something to be sold and bought." 4 However, Blackburn, J., continued:5 "But this rule is only applicable when the contract is positive and absolute, and not subject to any condition express or implied; and 15 H. L. C. 673. [1856.] 2 3 B. & S. 826, 833; 32 L. J. Q. B. 164; 8 L. T. 356; 11 W. R. 726 (Surrey Music hall burnt). [1863.] 3 15 M. & W. 253. [1846.] 4 Per Lord Cranworth, 5 H. L. C. 681. 53 B. & S. 833. Goods perishing before sale but after agreement to sell. there are authorities which, as we think, established the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfilment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied. warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor." A parallel may be drawn from the case of a promisor, whose performance is to be personal, and whose death prevents it; no action lies against his executors. So, in the case of "specific goods," the contract is not positive and absolute, but subject to an unexpressed condition. 7. Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided. Example.-A. agreed to buy a horse upon condition that he should be allowed to take it away, try it for eight days, and then return it, if unsuitable: the horse died on the third day, neither party being to blame. A. was not liable for the price in an action for goods sold and delivered (Elphick v. Barnes).1 In the case from which this example is taken, Denman, J., in his judgment said, "I think the law relating to such a case is accurately stated by Mr. Benjamin in p. 483 of the 2nd edition of his work on Sales, where he lays it 1 5 C. P. D. 321 ; 49 L. J. C. P. 698; 29 W. R. 139; 44 J. P. 651. [1880.] down as follows, speaking of 'sales on trial' or 'sales on approval,' in which cases he says, 'There is no sale until the approval is given either expressly or by implication, resulting from keeping the goods beyond the time allowed for trial.'" In the judgment, the case of Head v. Tattersall' was cited as a parallel. There, a "contingent buyer” had paid for a horse which he was to have on trial, and he was held entitled to recover back the price when he returned the horse as not corresponding with the warranty, although it was injured on its way home, and depreciated in value, but without any fault of his servant, who was in charge of it. No action can be brought for breach of a contract if that contract was never completed. There can be no sale, in its full meaning of "executed contract of sale," without property passing from seller to buyer; when the property intended to pass is destroyed before passing, the agreement becomes a nullity, a contract of sale being no longer possible in connection with those specific goods. 3 In Howell v. Coupland2 (200 tons of potatoes grown on seller's land), Blackburn, J. said that the principle of Taylor v. Caldwell 3 (Surrey Music Hall burnt), decided "that where there is a contract with respect to a particular thing, and that thing cannot be delivered owing to it perishing, without any default in the seller the delivery is excused." And Archibald, J., said1 that the case referred to decided, “that there is in such a contract an implied condition that when the time for delivery comes the article contracted for should be in existence, and the defendant is excused if he is prevented from delivering by a cause over which he has no control." 1 L. R. 7 Ex. 7 ; 41 L. J. Ex. 4; 25 L. T. 631; 20 W. R. 115. [1871.] 2 L. R. 9 Q. B. 462, 465; 1 Q. B. D. 258; 46 L. J. Q. B. 147; 33 L. T. 832; 24 W. R. 470. [1874.] 3 3 B. & S. 826; 32 L. J. Q. B. 164; 8 L. T. 356; 11 W. R. 726 [1863.] 4 L. R. 9 Q. B. 467 Ascertainment of price. The Price. 8.-(1.) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. When the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. If the price is fixed, and is more than £10, it must be mentioned in the note or memorandum in writing intended to satisfy section 4, Elmore v. Kingscote1 (horse for 200 guineas); but if no price is agreed on, the contract is not invalidated by its omission (Hoadly v. M'Laine,2 infra). Where the price is left to subsequent arrangement, and eventually amounts to £10 or upwards, the provisions of section 4 must be complied with (Watts v. Friends (crop not yet sown). "The omission of the particular mode or time of payment, or even of the price itself, does not necessarily invalidate a contract of sale. Goods may be sold, and frequently are sold, when it is the intention of the parties to bind themselves by a contract which does not specify the price or the mode of payment, leaving them to be settled by some future agreement, or to be determined by what is reasonable under the circumstances." Per Wilde, C.J., in Valpy v. Gibson1 (woollen goods for Valparaiso). "A reasonable price means such a price as the jury upon the trial of the cause shall under all the circumstances decide to be reasonable. The current price of the day may be 15 B. & C. 583; 8 D. & R. 343. [1826.] 44 C. B. 837, 864. [1847.] |