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performed within a year. If the agreement may possibly be performed within the year, it is not within the statute, although it will probably take a much longer time. So where the performance depends upon a contingency which may happen within the year, as an agreement to do or not to do certain things until the death or marriage of a person, it is not within the statute.88

To take an agreement out of the statute it is necessary that the contract may be wholly performed within a year. A mere inchoate performance is not enough.

But the payment in case of sale is not necessary to the complete performance, and a sale and delivery of goods or land within the year is not covered by the statute, though payment is to be delayed more than a year.

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918. The agreement must be in writing, but the form is not material; and the signature must be affixed to it.

919. The note or memorandum of the agreement need not be formal, nor drawn with technical precision; anything under the hand of the party showing that he has entered into the agreement, and upon what terms, is sufficient, although it may be a mere recognition or adoption of a prior contract. An endorsement, or memorandum on the back of a lease, acknowledging that he had agreed to take the premises, or a letter referring to another containing the contract, and agreeing to be bound by it, will be sufficient."

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But it must be remembered that there is a distinction between a promise to do a thing at a future time, as, I have no objection to guarantee," and actual present agreement-I do hereby guarantee. In the former case there is no present engagement, and, unless notice of acceptance be given, the parties are not bound, while in the latter there is a positive obligation.

It is held in England that the memorandum must state the consideration of the agreement. In this country the question is undecided. In some of the states the word agreement is used in the statute, and it is held that the consideration must appear;92 but in most it is sufficient if the promise or agreement clearly appear, and the consideration need not be stated. But in any event, it is enough if the consideration can be understood from the whole agreement. The agreement need not be all on one paper, but may be made by several papers referring to each other, and their connection may be shown by parol evidence.94

920. The statute requires that the memorandum or note shall be signed by the party to be bound; as it is not required that the signature of the other party should be affixed, the contract may be enforced without it.95

Herrin v. Butters, 20 Me. 119; Peters v. Westborough, 19 Pick. Mass. 364; Blanchard

v. Weeks, 34 Vt. 589; Rogers v. Brightman, 10 Wisc. 55; Comstock v. Ward, 22 Ill. 248.

87 Hill v. Jamieson, 16 Ind. 125; Sherman v. Champlain Trans. Co., 31 Vt. 162.

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Lyon v. King, 11 Metc. Mass. 411; Hutchinson v. Hutchinson, 46 Me. 154.

89 Haugh v. Blythe, 20 Ind. 24; Stone v. Dennison, 13 Pick. Mass. 1.

90 Jackson v. Lowe, 1 Bingh. 9, 2 Bos. & P. 238.

91 Symmons v. Want, 2 Stark. 371; Mozley v. Tinckler, 1 Exch. 692; McIver v. Richardson, 1 Maule & S. 557.

92 Henderson v. Johnson, 6 Ga. 390; Miller v. Cook, 23 N. Y. 495; Nabb v. Koontz, 17 Md. 283; Rigby v. Norwood, 34 Ala. N. s. 129; Cheney v. Cook, 7 Wisc. 413.

93 Violett v. Patten, 5 Cranch, 142; D' Wolf v. Rabaud, 1 Pet. 499; Gilman v. Kibler, 5 Humphr. Tenn. 19; Uren v. Pierce, 12 Miss. 91; Packard v. Richardson, 17 Mass. 122; Gillingham v. Boardman, 29 Me. 79; Sage v. Wilcox, 6 Conn. 81; Reed v. Evans, 17 Ohio, 128; Buckley v. Beardslee, 2 South. N. J. 570.

Lee v. Mahoney, 9 Iowa, 344; Ide v. Stanton, 15 Vt. 686; Forster v. Hale, 3 Sumn. C. C. 696.

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Laythoarp v. Bryant, 2 Bingh. N. c. 735; Thorn v. Kempster, 5 Taunt. 788; Penniman v. Hartshorn, 13 Mass. 87; McCrea v. Purmort, 16 Wend. N. Y. 460; Shirley v. Shirley, 7 Blackf. Ind. 452; Barstow v. Gray, 3 Me. 409. Contra, Dykers v. Townsend, 24 N. Y. 57.

As to the form of the signature, it may be by the party subscribing his name at the end of the memorandum, or in any other way, which clearly shows it to be his act; as, I, James Crockford, agree, etc., which is sufficient.98 It may be written in ink or with a pencil; it may be with his name in full or with initials, or with his mark. But the signature, wherever placed or however written, must, of course, be made with a view of authenticating the document as a concluded contract, and not with a view merely of altering or settling a draft, or approving of propositions and proposals not finally arranged and decided upon. 99

But the signature may be affixed by an agent, who must, however, be a "person lawfully authorized." The authority of the agent need not be in writing. The law will not presume an authority on the part of the agent, but it may result by implication from the nature of his employment.100

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An auctioneer or his clerk taking down the biddings is the agent of both the seller and buyer, and a delivery of a bought note or a sold note signed by him to the parties is a sufficient compliance with the statute. So an officer making a judicial sale is authorized to sign a memorandum as the agent of the buyer 102

One contracting party cannot be the agent of the other,103 nor can the clerk of one be the agent of the other, without special authority.104

*Knight v. Crockford, 1 Esp. 190; Taylor v. Dobbins, 1 Strange, 399; Saunderson v. Jackson, 2 Bos. & P. 239; Cabot v. Haskins, 3 Pick. Mass. 83; Clason v. Bailey, 14 Johns. N. Y. 484. Contra, Davis v. Shields, 24 Wend. N. Y. 322.

Geary v. Physick, 5 Barnew. & C. 234.

Hubert v. Moreau, 12 Moore, 219; Phillimore v. Barry, 3 Nev. & P. 228; 1 Campb. 513. *Sugden, Vend. & Purch. 159, 179; Merritt v. Clason, 12 Johns. N. Y. 102; Draper v. Pattina, 2 Speers, So. C. 292.

100 Hodgkins v. Bond, 1 N. H. 284.

101 Lee . Mahoney, 9 Iowa, 344; Morton v. Dean, 13 Metc. Mass. 385; Boorman v. Jenkins, 12 Wend. N. Y. 566.

10 Hegeman v. Johnson, 35 Barb. N. Y. 200; Stewart v. Galvin, 31 Mo. 36.

103 Wright v. Dannah, 2 Campb. 203.

104 Graham v. Mason, 7 Scott, 769; Graham v. Fretwell, 4 C. B. 25.

VOL. I.-2 D

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CHAPTER VII.

OF SALES.

921. Particular contracts
922. Of sale.-Definition.
924. The parties to a sale.

925. Subject matter of a sale.

927-930. The price.

928. The price must be actual.

929. Certainty of the price.

930. The price must be in money.

931-938. Consent of parties.

932. Form of consent.

936. Consent as to thing sold.

937. Consent as to price.

938. Consent on the sale itself.

939. When property passes by sale.

940-955. Obligations of the seller.

941-952. The delivery.

942. Modes and effect of delivery.

947. Place of delivery.

948. Time of delivery.

949. To whom delivery is to be made.

950. Expense of delivery.

951. Loss between sale and delivery.

952. Effect of delivery.

953-955. The warranty.-Of title.

954. Warranty of quality. 955. Express warranty. 956-965. Rights of seller.-Lien. 959-965. Stoppage in transitu.

960. Who may stop in transitu.

962. When goods may be stopped in transitu.

963. How goods are stopped in transitu.

964. Insolvency of the buyer.

965. Effects of stoppage in transitu.

966. Obligations of the buyer.

967. Rights of the buyer.

968-977. Kinds of sales.

969. Absolute and conditional sales.

971. Sale on condition of measuring.

972. Sale on condition of tasting.

973. Sale on condition of trial.
974. Voluntary and forced sales.

976. Public and private sales.

921. After having taken a general view of contracts, it seems proper to consider some of the principal contracts, each by itself, so as to form a more correct and definite idea of the mode of acquiring title to personal property. These

are the contracts: Of sale, of bailments, of bills of exchange, of promissory notes, of marine insurance, of life insurance, of insurance against fire, of bottomry and respondentia, of games, of agency, of suretyship, of partnership.

922. Traditions and the observations made among civilized nations agree with the speculations which show that barter preceded the contract of sale. It was not always convenient to have objects which would be taken in exchange for others, and this want was the cause of the invention of money. In choosing the material to make money, which should be the sign of value of all objects, it was desirable to select one which would not be easily destroyed by use, and which might be conveniently divided. Metal was found very suitable for this purpose, and, by selecting a precious metal which might be carried without inconvenience, the end was attained. Gold, silver, and some less precious metals, have been used for this purpose. In order to avoid delay and inconvenience in regulating their weight and quality when passed, the governments of the civilized world have caused them to be manufactured in certain portions, and marked with a stamp which attests their value; this is called money.1

These researches on the subject of money bring us to the conclusion that the price of a thing sold should be paid in money. The invention of money and the contract of sale are therefore coeval.

923. A sale is an agreement by which one of the contracting parties, called the seller, gives a thing and passes a title to it in exchange for a certain price in current money to the other party, who is called the buyer or purchaser, who, on his part, agrees to pay such price.2

This contract differs from a barter or exchange in this, that in the latter the price or consideration, instead of being paid in money, is paid in goods or merchandise susceptible of a valuation. It differs from accord and satisfaction, because in that contract the thing is given for the purpose of quieting a claim and not for a price. An onerous gift, when it imposes as a burden the payment of a sum of money, and is accepted by the donee, is in the nature of sale; when it requires the delivery of some other thing as a condition precedent, it is in the nature of a barter. And when partition is made between two or more joint tenants of a chattel, it would seem the contract is in the nature of a barter.

To constitute a valid sale there must be proper parties, a thing which is the object of the contract, a price agreed upon, the consent of the contracting parties, the performance of certain acts required to complete the contract.

924. In treating of the persons capable of entering into a contract, we considered the capacities of persons for such a purpose; little, therefore, need be said here. As a general rule, all persons sui juris, or those who have all the rights of freemen without being under the control of another, may be either buyers or sellers. Corporations may also buy and sell. But to this general rule there are several exceptions.

There is a class of persons who are incapable of purchasing, except sub modo, as infants and married women.

Another class, who, in consequence of their peculiar relation with regard to the owner of the thing sold, are totally incapable of becoming purchasers while

11 Coke, Litt. 207; 1 Hale, Hist. Com. L. 188; Pardessus, n. 22; Domat, liv. Prél. t. 3, c. 2, n. 6.

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Noy, Max. ch. 42; Sheppard, Touchst. 244; Pardessus, Dr. Com. n. 6; 1 Duvergier, Dr. Civ. Fr. n. 7; La. Civ. Code, art. 2414; Pothier, Vente, art. Prél.; Vail v. Strong, 10 Vt. 457. Mr. Chancellor Kent, 2 Com. 268, says: "A sale is a contract for the transfer of property from one person to another for a valuable consideration." This applies to a barter as well as to a safe; the barter of one horse for another would, according to this definition, be a double sale.

that relation exists; these are trustees, guardians, assignees of insolvents, and generally all persons who, by their connection with the owner or by being employed concerning his affairs, have acquired a knowledge of his property, as attorneys, conveyancers, and the like.3

925. There must be a thing which is the object of the sale; for if the thing sold at the time of the sale has ceased to exist, it is clear that there can be no sale. If, for example, A sells his horse to B, and at the time of the sale the horse was dead, unknown to both parties; or if, A and B being in Philadelphia, the former sells his house situated in Cincinnati to the latter, both parties supposing the house to exist, when, in fact, it was then burned down, it is manifest that there was no sale, because there was not a thing to be sold. Again, if A sell to B the foal of which his mare is then pregnant, and, in consequence of an abortion, no foal is born, there is no sale."

But a sale may be made of anything which, though without present existence, is the natural product of something now owned by the seller, as the crops to be gathered off the seller's farm. But a mere possibility or contingency not depending on any present right or property cannot be sold; as, for instance, the future crops on a farm which I do not own, or a possibility of inheritance or succession.7

The thing which is the object of the sale must be a thing in commerce, for things which are not in commerce, as the air, the water of the sea, a port, and the like, cannot be sold.

Not only a thing in possession may be sold, but a chose in action, as a debt, and when such a debt is sold, the sale entitles the buyer to all the securities which the seller holds for its payment, they being mere accessories to it.

There must be an agreement as to the specific goods which form the basis of the contract of sale; in other words, to make a perfect sale, the parties must have agreed, the one to part with the title to a specific article, and the other to acquire such title; and when they have so agreed, the purchaser takes the thing sold, in the same state in which it was held by the vendor, subject to the same liabilities; and accessories generally pass with the principal article sold; as, the sale of the materials of a newspaper establishment will carry with it, as an accessory, the subscription list.10 But it is not always easy to say what articles are principal and what accessories; a boat, it has been held, is not an accessory or an appurtenance to a vessel.12 The general rule is, that a sale will only operate to pass the vendor's title; if, therefore, he is not the owner, no title passes, but the lawful owner may reclaim the goods.13 By the old common law, sale of goods in market overt passed a good title against the owner; but this rule has never been adopted in this country. But an unauthorized sale by one not the owner will be good against the owner where the owner, by his carelessness, has lost the possession, and allowed the vendor to hold the property and to appear to the world as owner. Thus, if the owner entrusts goods to his

Barker v. The Marine Ins. Co., 2 Mas. C. C. 369.

Rice v. Dwight Mfg. Co., 2 Cush. Mass. 80; Franklin v. Long, 7 Gill & J. Md. 407; Allen v. Hammond, 11 Pet. 63.

5 Dig. 18, 1, 8. See McCarty v. Blevins, 5 Yerg. Tenn. 195; Smith v. Atkins, 13 Vt. 461. Trull v. Eastman, 3 Metc. Mass. 121; Carter v. James, 9 Johns. N. Y. 143; Smith v. Atkins, 18 Vt. 461; McCarty v. Blevins, 5 Yerg. Tenn. 195.

Fitch v. Fitch, 8 Pick. Mass. 480; Wheeler v. Wheeler, 2 Metc. Ky. 474.

8 Foster v. Fox, 4 Watts & S. Penn. 92.

9 Jones v. Steamboat Commerce, 14 Ohio, 408.

10 McFarland v. Stewart, 2 Watts, Penn. 111.

11 Coke, Litt. 152, a; Coke, Litt. 121, b, note.

12 Starr v. Goodwin, 2 Root, Conn. 71. But see Pardessus, n. 599.

13 Root ? French, 13 Wend. N. Y. 570; Buffington v. Gerrish, 15 Mass. 156.

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