Lunatics are not bound on a contract of sale, and the only exception would be, where they have not been formally adjudged insane, and the person dealing with them did so in good faith without the knowledge of the insanity. So the general contract rule in reference to drunkards, married women, spendthrifts, etc., holds good in the matter of contracts of sale. With the power and right, now in married women, to contract generally, has come the rule of statute, holding the wife equally liable with the husband for necessaries supplied to the family. In the absence of the statute, the husband is liable for necessary supplies furnished the family." Where a sale is made by a trustee, one who purchases with knowledge of the trust, is chargeable with the same trust in respect to the property, as the trustee from whom he purchases. This is true, even though the purchaser pays a valuable consideration. If he buys with notice of the equitable rights of the third person, the property will be held subject to the equities of such person.10 SECTION 10. CONSIDERATION. The price must always be money or money's worth." When the parties have expressly agreed upon the price to be paid for the sale of a thing, this settles the question, but the price to be paid is not always fixed with certainty, and sometimes nothing at all is said about the amount of money to be paid for the thing sold. In the latter case, the law implies a promise to pay what the thing is reasonably worth.12 Where the thing sold has a market price, then when no sum is • Wilson vs. Herbert, 41 N. J. L., 454. 7 Riggs vs. Am. Tract Society, 84 N. Y., 330; McCormick vs. Littler, 85 Ill., 62. • Von Platen vs. Krueger, 11 Ill. App., 627; Polly vs. Walker, 60 Iowa, 88. named to be paid, the market price on the day of delivery will govern.13 The price may be left to be fixed by a third person,1 but if the third person refuses to act, then in the absence of fraud, on the referee's part, there is no contract.15 It is not necessary that the money be actually paid over at the time of the sale, to pass title to the thing sold, it may be paid at any time the parties may fix upon. SECTION 11. FORMAL REQUISITES. In the absence of a statute the law requires no particular formalities to give validity to the contract of sale. But in addition to the Statute of Frauds, the law may require that where a bill of sale is given, that it should be recorded in cases where there is no actual change in possession of the thing sold, in order that the sale may be good as against creditors, or subsequent bona fide purchasers.18 18 In this place, therefore, it is deemed proper to say a word on the subject of Bills of Sale. A bill of sale is simply a writing which may or may not be under seal," evidencing the transfer of the property rights in a thing. A bill of sale should name the parties thereto with sufficient certainty so that they may be identified,' so also, the property transferred should be sufficiently described that it may be readily ascertained and pointed out. The bill of sale should be delivered by the vendor to the purchaser. Delivery is an essential, to make a bill of sale valid.19 At common law, a delivery of a 13 McEwen vs. Morey, 60 Ill., 32. 14 Morton vs. Gale., 95 Ill., 533; 16 Fuller vs. Bean, 34 N. H., 290; Scott vs. Whitney, 41 Wis., 504. 16 Washburne vs. Burke, 84 Ill. App., 587. 17 Gibson vs. Warden, 14 Wall. (U. S.), 244. 18 Simmons vs. Woodard, 61 N. J. Ch., 252. 19 Dyer vs. Bean, 15 Ark., 519; Doyle vs. Wagner, 42 Mich., 332. bill of sale, without delivery of possession of the property mentioned in the bill, was void as to creditors and a fraud in itself.20 But the rule now is, that the retaining of the possession of the property by the vendor only raises a presumption of fraud." Where the property is such that it is incapable of delivery, a delivery of a bill of sale is sufficient to pass title and possession.22 A bill of sale, if taken as security for a debt, will be treated, at least so far as the immediate parties there are concerned, as a chattel mortgage.23 A bill of sale will not transfer the property until it has been delivered to the vendee or to some person for him, and with his assent.24 There are various circumstances that may arise, to make a contract of sale void for illegality. But the usual ground is that the subject matter of the sale is of a thing, the sale of which, the law prohibits, or that the purpose of the sale, is to effect that which the law will not countenance, or that the circumstances of the time and place of sale are under legal interdict. In passing on this phase of the law of sales it is only necessary to keep in mind the general principles of contract law. The fundamental principles are to be applied to the law of sales as they are to any other branch of contract law. In the first place then, if the contract of sale is illegal, the law will not lend its aid to either of the parties to such an agreement. The 20 1 Smith's Leading Cases, 1; Meeker vs. Wilson., 1 Gall (U. S.), 419. 21 Hamilton vs. Russell, 1 Craven (U. S.), 309; Thorton Davenport, 2 İll., 296. V8. 22 Gibson vs. Stevens, 8 How. (U. S.), 384. 23 Cake vs. Shull, 45 N. J. Eq., 208; 24 Buffinton vs. Curtis, 15 Mass., 528. principle of public policy is this as stated by Lord Mansfield 25 "Ex dolo malo non oritur actio." No court will lend its aid to a man who founds his cause of action upon an illegal or immoral act. And since no relief may be had under such circumstances from this rule of the law's policy, we hear then, in this connection the application of the saying, potior est conditio defendentis. There are to be applied, however, the same rules of exception that are mentioned in all general texts on contract law, as for instance, the rule that the law will come to the relief of one of the parties where a locus poenitentiae remains. That is to say, it is the policy of the law to aid in defeating the execution of illegal agreements, and if one party sees fit to withdraw from an incompleted illegal contract, the courts will aid him to do so, by permitting him to recover back what he has parted with, but the locus poententiae, the time of the repentence, must remain. The exception to the rule of law denying relief is also applied in the case where it is shown the parties are not in pari delicto, as for instance, where the party seeking relief was induced by fraud or duress of the other party to enter into the contract.27 Contracts of sale may be illegal because of a rule of the common law,28 or because of a rule of statute,29 or because the law considers the contract of sale to be against public policy. A contract of sale which is by statute illegal when made, is not rendered valid by repeal of the statute. It is also a general rule that if the sale is valid in the place where made it is valid everywhere, and vice versa. 28 Holman vs. Johnson, 1 Cowp., 341. "Tylers vs. Carlisle, 79 Me., 201, 1 Am. State Rep., 301. Smith vs. Cuff, 6 M. & Sel.. 160. 28 Poplett vs. Stockdale, 2 Car. & P., 198. 39 Quarles vs. State, 55 Ark., 10. |