mand upon any contract, was unrestricted in distance of time, and not necessary to be accompanied and ascertained by those acts of payment, or delivery of part, or the whole, of the thing contracted for, which, in contracts or bargains to be presently ex ecuted, were necessary to their obligation and completion, and to the legal alteration of property in the subject between the contracting parties.

chattels without any reservation

in respect to

property is not altered,

But a bargain and sale of a chattel, where no future day was In bargains assigned between the parties for the delivery and payment, unless and sales of earnest was given to bind the bargain, required a simultaneous or consecutive payment or delivery to fix the contract, and transmute the property; for if the sale was immediate, and the buyer time, the made no payment or tender, the owner was at liberty to dispose of the goods as he pleased; nor was he compellable to part with the goods before payment of the price by the purchaser; and if before such payment they were taken or removed by the buyer, it was an injury for which an action of trespass lay for the reco very of damages,(y) or the owner might waive the wrong, and insist upon the contract by his action of debt or assumpsit, being allowed under these circumstances to consider the contract as executed or anticipated by the acts of the other party.

unless earnest be given or payment made,or possession either partial or total deli

vered.

But before, as well as since, the statute payment of earnest was always considered as perfecting the bargain, so as to preclude the retractation by the one without the consent of the other, and to give to the buyer an action for the goods, and to the seller an action for his money, the property being changed by such payment of earnest, no matter how small the sum. If I say that I will sell my horse for 201. and a person offers to buy it at that price, but does not presently tender the money, it is no contract, and though the party should come again with the money in his hand, I am at liberty to accept it, or to refuse to sell, or to de- *[166] mand a larger sum, according to my pleasure. But if he had proceeded forthwith upon the price being named, to count out his money, and in the mean time I had sold the horse to another he might take his remedy against me by action upon the case.(z)

(y) Mod. 137. (z) Noy's Max. c. 42, n. 87. Dyer 30, 76. Shep. Touchstone, 222. Hob. 41, 42. Plowd. 432.

These heads are well recapitulated in the Touchstone thus: "If a man, by word of mouth, sell to me his horse, or any other thing, and I give or promise(82) him nothing for it, this is void, and will not alter the property of the thing sold. But if one sell me a horse, or any other thing for money, or other valuable consideration, and the same thing is to be delivered to me at a day certain, and by our agreement a day is appointed for the payment of the money—or all or part of the money is paid in hand -or I give earnest money to the seller or I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day appointed for the payment; in all these cases, there is a good bargain and sale of the thing to alter the property thereof. And in the first case, I may have an action for the thing, or the seller for his money; in the second case, I may sue for and recover the thing bought; in the third case, I may sue for the thing bought, and the seller for the residue of his money; in the fourth case, i. e. where earnest(83) [167] is given, we may have reciprocal remedies against each other; and, in the last case, the seller may sue for his money."

Payment of earnest alters the property, but

not so as to

give a right to the possession with

By the payment of earnest it has been stated, that the bargain is complete, and the property is transferred from the vendor to the vendee, and the price to be given for it is vested in the vendor, and I apprehend it to be quite clear, that the vendee may bring his action for the goods, and the vendor his action for the price out payment. of them; which seems to be a consequence of and to suppose a transmutation of property. But we are to observe, that notwithstanding the earnest given, the absolute right to the immediate possession is not so transferred with the property in the thing, as that the vendee may take the goods without first paying or tendering the price agreed upon ;(a) but if he tenders the price to

(a) Hob. 41.

(82) That is, supposing there to be an agreement between the par, ties.

(83) The question, whether money paid was paid as earnest or not, must be determined by the destination expressly given to it by the person paying, for quidquid solvitur, solvitur ad modum solventis, Pinnel's case, 5 Rep. 117. But then it seems he ought to declare on what account he pays it, at the time of paying it. See Manning v. Western, 2 Vern 606, and see 2 Esp. N. P. Ca. 666.

the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. In the nisi prius case of Langfort v. the administratrix of Tiler,(b) it was ruled by Chief Justice Holt, that notwithstanding the earnest, the money must be paid upon fetching away the goods, where no other time for payment was appointed. That earnest only binds the bargain,(84) and gives a party a right to demand; but

(b) 1 Salk 113.

law in respect to earnest.

(84) The attentive student will observe a considerable difference be- The doctrine tween the effect of earnest (arrha) in the civil law, and in our own; to of the civil which probably another striking difference in the circumstances constituting the perfection of the contract upon the EMPTIO ET VENDITIO, and our BARGAIN AND SALE, has given birth. We have observed, that a bargain and sale in the law of this country, where no future day is assigned by the parties for the payment or delivery, nor any earnest given, requires an immediate delivery or payment to fix the contract, and make it obligatory upon the parties; and that upon ready money contracts (and every contract must be so understood, unless the contrary be expressed) if the buyer makes no payment or tender upon the spot, the owner is at liberty to dispose of the goods to whom he pleases. The dread of perjury, characteristic of our earliest legal ordinances, required some ostensible act to assure the bargain, and the payment of earnest had this effect given to it; the law considering that, without this act of confirmation, the transaction imported not a settled bargain, but only a communication about a bargain.

But, in the civil law, neither payment, nor delivery, nor earnest, was necessary to conclude the bargain, but simply, the convention of the contracting parties. The perfection of the contract was one thing, and the consummation or fulfilment another. Agreement concerning the thing purchased, and the price to be given, established the emptio et venditio, which was consummated by the payment and delivery. As soon as the bargain was struck, the obligation of performance reciprocally attached, and a right of action respectively to enforce it. Ut primum de re et pretio convenit, emptio perfecta intelligitur, quamvis nec res traditur, nec pretium numeratum, nec arrha data sit. Atque in contractibus qui consensu perficiuntur, distinguenda perfectio contractüs a consummatione sive implemento. Emptionem et venditionem perficit solus consensus de re et pretio; consummat rei traditio et pretii numeratio, qui extremus es contrahentium finis : simul atque autem emptio perfecta est, nascitur utrinque obligatio, teneturque emptor actione ex vendito, ut nummos, quos pretii nomine pro re vendita promisit, solvat ; venditor actione ex empto, ut rem venditam tradat emptori. Vin. lib. 3, tit. 24.

then a *demand without the payment of the money is void; but that after earnest given, the vendor cannot sell the goods to an169] other, twithout a default in the vendee; and, therefore, if the

But we are to observe, that though the perfection of the contract arose upon the agreement without payment, delivery, or earnest, yet that this was not a mere loose and casual agreement, but was required to be negotiated in certain stipulatory forms of question and answer, which served to mark a deliberate purpose in the parties, and, therefore, could better dispense with the circumstances of authentication made necessary by the common law of England; and though the solemnia verba, the determinate forms of interrogation and response, as spondès?” spon deo; promittis? promitto; fide promittis? promitto; fide jubes ? fide jubeo; dabis? dabo ; facies ? facio; settled by the earlier jurisconsults of the Roman law, were relaxed by the Leonine constitution, their substance and effect always remained essential to the constitution of a binding bargain. Et si autem scrupulosa hæc verborum observatio a Leoni postea sublata est, illud tamen ad vim atque substantiam stipulationis adhuc requisitur, ut fiat utroque loquente, ac proinde verba ex utraque parte inter-" veniant, ut promittens respondeat conguenter interrogationi, idque sine notabili intervallo, et animo ac proposito contrahendæ verborum obligationis. Idlib. 3, tit. 16.

There being no such solemn verbal ratification of a bargain in our law, as did once more technically, and still substantially remains in the civil law, an effect is given among us to the earnest which did not belong to it in the law of the empire, viz. that of specifically binding the bargain. According to the text and commentaries of the civil lawyers, the arrha or earnest is given, not to perfect the contract, which is complete without it by virtue of the stipulation, but it is given for the better manifestation of the agreement, quo facilius probari possit conve pisse de pretio. It is, say those writers, either symbolical, as where a ring is given, or it may be a part of the purchase; and if it is in part payment, yet this is not considered as a part execution of the contract; so that if the agreement be not otherwise perfected, as for example, if it was part of the agreement that the contract should be reduced into writing, which is not yet done, whereby the perfection of the contract is suspended, the anticipated payment of a part of the price, by way of earnest, will not prevent the contract from being integral, as it is called; the consequence whereof is, that either party may recede from the bargain. But such refusal, after earnest given, must, if made on the part of the buyer, be followed by the forfeiture of the earnest so paid, and if on the part of the seller, by a return of the earnest, with a duplication of its value. With this consequence, the payment of earnest, according to the civil law, leaves a locus penitentiæ to both parties, if the bargain has been otherwise left incomplete; but it does not give or create

vendee does not come and pay and take the goods, the vendor *ought to go and request him; and then, if he does not come and pay and take away the goods, in convenient time, the agreement is dissolved, and the seller is at liberty to sell them to any other person.

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Effect of

The statute of frauds has given no new efficacy to the paythe statute ment of earnest; it has only excepted the cases wherein earnest on bargains has been paid out of the new requisition it has made for written and sales of goods. evidence of a contract for the sale of goods, for the price of 107. or upwards. In respect to those executed bargains, in which the nature of the dealing between the parties implies the contemplation of an immediate delivery of the thing and payment of the price, wherein there is hardly room to interpose a written contract, the transactions of mankind continue the same; but their rights and obligations, even in these hourly dealings are mate rially varied. If before the statute, a man offered to sell his horse for 201. and another offered to buy him at that price, and presently tendered the money, the bargain was concluded, and the party proposing to sell was not at liberty to dispose of the horse to a new purchaser. By the operation of the statute, however, such owner would be perfectly free to sell the horse to a third person, unless the party first offering to purchase could substantiate the first bargain, by the production of a note or memorandum, in writing, signed by the seller, of the terms of such bargain. Again, before this statute, if a person had bought a piece of cloth for 10. and it was agreed between the seller and buyer, that the goods should remain with the seller, until the purchaser could go home to his house to fetch the money, the seller was precluded in the interim from selling the same merchandise to another, and upon the subsequent tender and *refusal of the money agreed

any locus penitentiæ, as seems by some commentators to have been erroneously conceived, so that if the bargain has been by other means rendered perfect, by the payment of earnest the remedy is doubled to the parties, who may either sue upon their rights reciprocally to have the bargain completed, or may resort to the compensation afforded them respectively, by the payment of earnest, the seller to the forfeiture thereof, and the buyer to his action for compelling the restoration of what he has so paid, with a duplication of its amount. See Dig. lib. 18, 19, tit. 1, C. lib. 4, tit. 38. 40; and see the Commentary of Vinnius there on, lib. 24, tit. De emptione et venditione.

T

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