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IV. Of the contract of sale.

A sale is a contract for the transfer of property from one person to another, for a valuable consideration ;a and three things are requisite to its validity, viz. the thing sold, which is the object of the contract, the price, and the consent of the contracting parties.1"

(1.) The thing sold must have an actual or potential existence,0 and be specific or identified, and capable of

» Sir William Blackstone defmes a sale to bo " a transmutation of property from one man to another in consideration of some price or recompense in value," 2 Corem. 446. Ross in his Treatise on the Law of Purchasers and Vendors, adopts the same definition, and I take this occasion to recommend that work of Mr. Ross as a learned and faithful performance. It is republished in this country as part of the 12th volume of the Law Library, edited by Thomas J. Wharton, Esq., a most valuable series of publications to the profession.

'0 Pothicr, Traite da Contrat de Vente,n.2. Bell's Prin. L. S. sec. 85. 90—92.

6 It is sufficient that the,thing contracted for has a potential existence, and a single hope or expectation of means founded on a right in esse, may be the object of sale as the next cast of a fisherman's net, or fruits or animals not yet in existence, or the good will of a trade. But a mere possibility or contingency not coupled with any interest in, or growing out of property, as a grant of the wool of the sheep the grantor may thereafter buy, or the expectancy of an heir apparent, is void as a sale. Dig. 18. 1. 8. Pothier, Cont. de Vente, n. 5, 6. Plowd. Rep. 13. a. Grantham v. Hawley, Hob. Rep. 132. Harg. Co. Litt. lib. 1. n. 363, S. C. Robinson v. Mac Donnell, 5 Maule d> Selw. 228. Com. Dig. tit. Grant, P. Careton v. Leighton, 3 Merir. 667. See infra, vol. iii. 64. See, also, infra, p. 504. A covenant to pay out of future profits of an existing office is good. Clapham v. Moyle, 1 Ler. Rep. 155. Mr. Bell, in his Principles of the Law of Scotland, p. 30, (a work very comprehensive but admirably condensed,) states that the hope of succession may he the subject of sale, but in the case from Merivale, Lord Eldon held, that such an expectancy could not be the subject of assignment or contract. Reversionary interest and expectancies founded on settlements and entailments are the subject of sale, as see post, 475, but a mere hope, where there is no existing right sustaining the expectation, as where the ancestor is seized in fee simple, with a power of alienation and devise, is not the subject of a valid sale. But see post, 475, n. c. A bill or note, or inland bill of exchange is not the subject of sale, unless it be such a security in the hands of the seller, that he could sue on it at maturity. Powell v. Waters, 8 Cowen, 689. •Cram v. Hendrick, 7 Wend. 589. Munn v. Com am. Company, 15 Johnson

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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.b But if the article intend

44. But foreign exchange in the hands of the drawer is a subject of traffic and sale—a commodity bought and sold like merchandize. Bankers'drafts are also existing things in action, and subject to the like traffic. The drawer sells his foreign bill as money or funds abroad. His credit abroad is to the payee equivalent to cash, and the bill of exchange is the instrument of transfer. The commission charge on the transfor is part of the price of the sale and not usurious. Holford v. Blatchford, 2 Sandford's Ch. Rep. 149.

« Rondeau v. Wyatt, 2 H. Blacks. 63. Mucklow v. Mangles, 1 Taunt. Rep. 318. Groves v. Buck, 3 Maule $ Selw. 178.

> Boyd v. Siffkin, 2 Camp. Rep. 326. Withers v. Lyss, 4 Ibid. 237. In the civil law, ownership in the seller at the time of the contract, was not essential to its validity. Dig. 15. 1. 1. 57. Heinecc. Elem. Jar. Secund. Ord. Inst. lib. 3. tit. 24. sec. 906. Pothier, Contrat de Ventv, n. 7. In Bryan v. Lewis, 1 Ryan «J- Moody, 386, Lord Tenderden ruled, that if goods be sold to bo delivered at a future day, and the seller has not the goods, nor any contract for them, nor any reasonable expectation of receiving them by consignment, but intends to go into the market and buy them, it was not a valid contract. It was a mere wager on the price of the commodity. This is contrary to the rule at law, as suggested by Lord Chancellor Parker, in Cud v. Rutter, 1 P. Wms. 570. The observation of Lord Tenterden in this case, is said to be a mere dictum and unsupported by any other case. Wells v. Porter, 3 Scott, 141. In this last case in the C. B., it was held that time bargains in foreign funds were not illegal or void at common law, and in Hibblewhite v. McMorine, 5 Meeson W., 462, the decision of Lord Tenterden in Bryan v. Lewis was completely overruled. Mr. Bell says that, where the distinction exists between sale as a transfer of property and sale as a contract, as in the civil law, Holland, Scotland, &c., a thing which belongs to another may be the subject of sale, and the seller must make good the contract or answer in damages. But that in England and America, as a sale is a transfer of property, it cannot exist as to property not belonging to the seller at the time. Bell on the Contract of Sale, Edin. 1844, p. 26, 27. In France, by the Code Civil, No. 1617, on a contract of sale of goods which can be purchased in the market, the seller is bound to fulfil the contract. By the N. Y. Revised Statutes, 3d edit. voled to be sold has no. existence, there can be no contract of sale. Thus, if A. sells his noise to B., and it turns out that the horse was dead at the time though the fact was unknown to the parties, the contract is necessarily void. So, if A., at New-York, sells to B. his house and lot in Albany, and the house should happen to have been destroyed by fire at the time, and the parties are •equally ignorant of the fact, the foundation of the *469 contract fails, provided the house, and not the ground on which it stood, was the essential inducement to the purchase.* The civil law came to the same conclusion on this point.b But if the house was only destroyed in part, then if it was destroyed to the value of only half or less, the opinion stated in the civil law is, that the sale would remain good, and the seller would be obliged to allow a rateable diminution of the price. Pothier thinks, however,0 that in equity the buyer ought not to be bound to any part or modification of the contract, when the inducement to the contract had thus failed; and this would seem to be the reasoning of Papinian,

i. 892, in order to prevent stockjobbing, it is declared that all contracts, written or verbal, for the sale or transfer of stocks are void, unless the party contracting to sell be at the time in the actual possession of the evidence of the debt or interest, or otherwise entitled in his own right or with due authority to sell the same; and all wagers upon the price of stock is void. The English statute of 7 Geo. 2. c. 8, was made to prevent stockjobbing, and which the statute termed an infamous practice. The discussions in the English courts on this statute have been many and interesting, and the operation of the statute made subject to important distinctions. An agreement to transfer stocks for a valuable consideration to be paid, though the seller was not at the time actually possessed of or entitled to the stock in his own right, has been held not to be within the statute, which only applied to fictitious sales of stocks. Mortimer v. McCallan, 6 Meeson $ WeUby, 58. S. C. 7 Id. 20. 9 Id. 636.

» Dig. 18. 1. 1. 57. Pothier Cont. is Vente, n. 4. Hitchcock v. Giddings, 4 Price's Rep. 135. S. C. Daniel's Exch. Rep. 1. Story's Com. on Eq. Jurisprudence, 157. Allen v. Hammond, 11 Peter's U. S. Rep. 63

b Dig. 18.1. 57.

Traits du Contrat de Vente, n. 4.

from another passage in the Pandects,a and it is certainly the more just and reasonable doctrine. The Code Napoleonb has settled the French law in favour of the opinion of Pothier, by declaring, that 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; and, I presume, the principles contained in the English and American cases tend to the same conclusion, provided the inducement to the purchase be thereby materially affected.

Where the parties had entered into an agreement for the sale and purchase of an interest in a public house, which was stated to have had eight years and a half to come, and it turned out on examination that the vendor had an interest of only six years in the house Lord Kenyon ruled,c that the buyer had a right to consider the contract at an end, and recover back any money which he had paid in part performance of the agreement for the sale. The buyer had a right to say it was not the interest he had agreed to purchase. So, in another *470 case, and upon the same principle, *Lord Eldon held,11 that if A. purchased a horse of B., which was warranted sound, if it turned out that he was unsound, the buyer might keep the horse and bring an action on his warranty for the difference of the value; or lie might return the horse, and recover back the money paid; though if he elected to pursue that course, he must be prompt in rescinding the contract.c There are other cases, however, in which it has been held,f that it was no defence at law to a suit on a note or bill, that the

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consideration partially failed, by reason that the goods sold were of an inferior quality, unless clear fraud in the sale be made out; and the courts refer the aggrieved party to a distinct and independent remedy. But if a title to a part of the chattels sold had totally failed, so as to defeat the object of the purchase, as if A. should sell to B. a pair of horses for carriage use, and the title to one of them should fail, it is evident from analogous cases, that the whole purchase might be held void even in a court of law. In case of a sale of several lots of real property at auction, the purchaser purchased three lots, and paid the deposit money, but the title to two of the lots failed; and Lord Kenyon ruled,1 1 that it was one entire contract; and if the seller failed in making title to any one of the lots, the purchaser might rescind the contract and refuse to take the other lots. The same principle was advanced in the case of Judson v. Wass,b which was the purchase of several lots of land; and the purchaser was held to be entitled to have a perfect title according to contract, without any incumbrance, or he might disaffirm the sale, and recover,back his deposit.0

« Chambers v. Griffiths, 1 E*p. Rep. 150.

» 11 Johns. Rep. 525. There are conflicting cases on this point; but in the English law, the better opinion seems to be, that if a purchaser contracts for the entirety of an estate, and a good title can only be made to a part of it, the purchaser will not be compelled to take it. This was the decision in Roffey v. Shallcross, 4 Madd. Ch. Rep. 122. Phil. ed., and in. Dalby v. Pullen, 3 Simon's Rep. 29. In Cassamajor v. Strode, (1 Cooper's Sel. Ca. 510. 8 Conden. Ch. Rep. 516. S. C.) Lord Chancellor Brougham said, that the decision of Lord Kenyon, in Chambers v. Griffiths, was not sound doctrine, and was contradicted by the cases of James v. Shore, 1 Starkie, 426, and Roots v. Dormer, 4 Barnw. Adol. 77. He further said, that Lord Eldon, in the note to RofTey v. Shallcross carried the rule too far the other way. The principle laid down by Lord Brougham as the medinm one was, that the purchaser was not to be let off from his contract for one lot, on the ground that the title to the other was bad unless it appeared from the circumstances, that the two lots were so connected that the purchaser would not have bought, except in the expectation of possessing both lots.

< If a party has entered into a contract by the fraud of the other party .

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