agree to buy or sell what is not now in existence, such as the fruit to grow on certain trees, or certain articles to be manufactured. Suppose an article to be manufactured should be paid for in advance, and then should be lost or destroyed before it was quite finished: the manufacturer would have to bear the loss, because it was still his, and the buyer would be entitled to another article or to receive back the money he had advanced. 8. Sale without Ownership.-If one attempts to sell what he does not own there is no sale; i.e., no one can claim a thing because he bought and paid for it, unless he bought it from the owner. THE TRUE OWNER OF PROPERTY CAN CLAIM IT AT ANY TIME, AND IN WHOSEVER HANDS HE FINDS IT. This rule becomes important when stolen or found property is sold in the market. It makes no difference that the article is delivered, or that both parties believe that the seller is the owner, or how many hands it has passed through since it left the real owner's possession. Buyers therefore must always take this risk, for it is unjust that the true owner should be deprived of his property without his fault or consent.* 9. Exception. The rule of the preceding section applies to all kinds of property, with two very important exceptions, viz., money and negotiable securities payable to bearer.t WHOEVER OBTAINS MONEY OR NEGOTIABLE SECURITIES PAYABLE TO BEARER (1) BEFORE THEY BECOME DUE, AND (2) GIVES SOMETHING IN CONSIDERATION, AND * But one may agree to sell what he does not own. A sale, payment to be made on delivery, is a conditional sale. For the kinds of money see p. 145. Negotiable securities include promissory notes, drafts, bills of exchange, checks, bonds of the National and State Governments, of cities, towns, etc., of railroads and other corporations, and some other securities. They only have the quality described in sec. 9 when made payable to the bearer. See also pp. 107-111 for meaning of negotiable and payable to bearer. (3) HAS NO REASON TO SUSPECT THAT THE ONE FROM WHOM HE OBTAINS THEM HAS NOT THE FULL RIGHT TO TRANSFER THEM, OBTAINS THE SAME RIGHT TO THEM THAT HE WOULD IF THE OTHER PARTY WERE THE REAL OWNER. In other words, possession in this case is sufficient evidence of ownership. The buyer can buy from one not an owner. The reason for this exception is the benefit of trade. Money and commercial securities are passing daily from hand to hand, and are of great convenience. If, whenever any were offered to a person, he was obliged to stop and learn whether the party had the right to sell, it would greatly limit trade. But under any other conditions than the three stated the buyer does not deserve to be protected. 10. Illustrations.—If a thief steals a watch and sells it to a jeweler or pawns it to a pawnbroker, the true owner is entitled to it without reimbursing the jeweler or the pawnbroker, even though they were ignorant of the theft. But where a thief spends stolen money or sells a stolen bond payable to bearer, the one receiving them may keep them and the original owner must suffer the loss. If, however, a thief gave stolen money to a friend, the latter could not keep it. If a security were overdue, no one could deprive the true owner of it. If a banker buying such securities had reason to suspect they were stolen, the true owner could take them without reimbursing him. Thus, if a bond should be offered to him for $40 which he knew was worth $70 in the market, this would be so suspicious a circumstance that he would not be protected in buying it. Note to Teacher.-These illustrations could profitably be multiplied to almost any extent. Cases, such as might arise, with differing circumstances, might be supposed and the scholar required to tell to whom the property should belong and upon whom the loss in each case must fall. 11. Particular Property.-A sale must refer to particu lar property (that house, or those goods), or it is only an agreement to sell or buy. Thus, if I order five pieces of cloth, the cloth does not become mine until the particular five pieces have been selected. THE SALE IS NOT COM PLETE UNLESS PARTICULAR PROPERTY IS REFERRED TO, OR SET APART. If no particular property is designated the contract is an agreement to sell. * 12. Price.-AN AGREEMENT TO PAY MONEY IS A NECESSARY ELEMENT OF A SALE. The exchange of certain property for other property is barter, and is not subject to the rules of a sale. But it is not necessary that a price should be agreed upon, for IN EVERY SALE WHERE THE PRICE IS NOT FIXED THERE IS AN IMPLIED AGREEMENT THAT THE BUYER SHALL PAY WHAT THE GOODS ARE REASONABLY WORTH. When nothing is said as to the time of payment, payment is due immediately. If the agreement is that it shall be paid for at some future time, the sale is said to be on credit. 13. Sale of Debts.-Like other property a claim upon a debtor may be sold by a creditor. Thus if A owes B $50, B may sell the debt to C. C should then give notice of the sale to A, for if A, before receiving such notice, should pay B and B should receive it, the debt would be discharged. A claim thus sold is subject to the same conditions in the hands of a purchaser as in the hands of the seller. Thus, if A owes B $50 for money borrowed, and B owes A $50 for services rendered, they could be set off against each other; and if C should buy one of the claims he would get nothing. But if the debt is represented by a note, draft, or other negotiable paper, it may sometimes be sold without being subject to the same conditions. This will be explained later (pp. 108-117 and p. 131). * Though, as we have seen (sec. 2), the payment itself is not essen tial to make the goods the property of the buyer. REQUISITES OF I. A SALE; I That it be a BINDING CONTRACT; to this the following are necessary, viz., I. If price is under a certain amount; a. The first six requisites of a binding contract. (See Chap. II.) II. If over that amount; a. The first six requisites of a binding contract, and b. The seventh requisite, viz., either II. That the property EXIST; 1. A writing, 2. Delivery and acceptance of part, or 3. Part-payment. III. That it be OWNED BY SELLER; except in case of 1. MONEY, and 2. NEGOTIABLE SECURITIES PAYABLE TO BEARER. IV. That it contemplate PARTICULAR PROPERTY; V. That the consideration be MONEY. II. AN AGREEMENT TO SELL; (I. That it be a BINDING CONTRACT; to this the following are necessary, viz., I. If price is under a certain amount, a. The first six requisites. II. If over that amount; Sa. The first six requisites, and 2. Delivery and acceptance of 3. Part-payment. II. That the consideration be MONEY. CHAPTER XIX. INCIDENTS OF A SALE. 1. Incidents. We have considered in the preceding chapter the things essential to a sale, i.e., a change of ownership; we will now consider those incidental, i.e., those which usually or often accompany a sale of goods. 2. Delivery IS NOT ESSENTIAL TO A SALE, AS BETWEEN THE PARTIES, BUT IT IS AS TO THIRD PARTIES. In other words, the property becomes the buyer's, in general, whether it is delivered to him or not, but if on account of its not being delivered to him others are led to believe it still belongs to the seller it will be so considered. As to them the non-delivery is fraud. Thus suppose A should sell to B, but keep the goods, and then pretending they were his should sell them to C: if now B could claim them as his C would be defrauded. Therefore the first sale is void and the second one valid. A, however, must answer to B, if B is defrauded. 3. Seller's Lien.--In an ordinary sale, where there is nothing said as to when payment or delivery is to be made, the parties are supposed to contemplate that both shall be immediate. A BUYER HAS THE RIGHT TO TAKE THE GOODS WHEN HE PAYS FOR THEM BUT NOT UNTIL THEN. This right of the seller to keep the goods until paid is called his lien (pronounced lee'-en). But the right is lost as soon as he delivers them. When, however, the sale is on credit, there is no such right, for such a sale implies that the buyer is to have the goods immediately and be trusted for the price. Parties may make any agreement they choose, and it is very common for mer |