of the contracting parties. When goods are sold there is an implied warranty that the seller has title. There is no warranty of title to real estate sold unless it is expressed in the conveyance. If one in due form contracts for the sale of real estate, and refuses to convey, the court at the suit of the buyer will compel the seller to convey, if the buyer has performed or tendered performance of his part of the contract; or if the buyer elects he may sue the seller for damages. Except in rare cases, as where the contract is for the sale of stock in a corporation, courts will not compel the seller of personal property to transfer it to the buyer, leaving the buyer to his action for damages.

As to the quality of goods sold there is no warranty implied except in cases of sales by sample or by description where there is a warranty that the goods sold will be of the same quality as the sample, or correspond to the description. Where a dealer in a special kind of goods sells by description, there is also an implied warranty that such goods will be merchantable. Where a purchaser buys an object for a special purpose from the producer, relying upon his skill and judgment, the seller impliedly warrants the object as reasonably fit for such a purpose. There may be latent defects in the article unknown to both parties, and in such cases the buyer takes it at his own risk, but if the seller knew of such defects his concealment of them might amount to fraud, which would give the buyer a right to rescind the contract or sue for damages. Where defects of quality were apparent and each had equal means of information, there is no fraud, nor will mere statements of opinion as to value made by the seller amount to fraud.

If in a sale of several tracts of land or several horses at the same time title fails as to part, the buyer can not be held to the contract unless he waives his right to

20-Elem. Law.

object. Of course, if there is a total failure of consideration the contract is void. If parties are negotiating by letter for a sale, the party making the offer may revoke it at any time before it is accepted; once accepted, however, it can not be revoked.

Express warranties are those embodied in the terms of the contract. Express warranties do not exclude implied warranties unless inconsistent with them. General warranties will not cover specific, obvious defects in the thing warranted, although a special warranty will if so intended. General words of commendation, generally known as "puffing" or "sellers' talk" are not warranties.

$498. Transfer of title.-When does the title to the thing sold pass from the seller and vest in the buyer? When the terms of the sale are agreed upon and the seller has performed his part of the contract, from that instant the property is at the risk of the buyer. So, when the terms are agreed upon and the buyer pays or tenders the price, he is entitled to possession of the thing purchased. These general rules may be varied by the agreement of the parties, fixing a different method of payment, postponing the time of delivery, etc. If credit is given, the title passes to the buyer without payment, but if in such case the buyer becomes insolvent after the purchase and before the thing purchased comes to his possession, the seller may reclaim the goods, and defeat the buyer's title by asserting what is called the right of stoppage in transitu. An unconditional contract of sale of specified goods in deliverable condition passes title at once, although both delivery and payment are to be made at a future time, unless the contract expressly provides otherwise. If the goods are not in a deliverable state, or there is something yet to be done to them as branding or stamping, the title passes as soon as they

are put in the deliverable state or the branding or stamping is done.

Where the unconditional sale is of unspecified but described goods, the title passes as soon as the goods are specified or clearly set aside for that purpose or delivered.

§ 499. Sale of goods, wares and merchandise. Oral contracts for the sale of goods worth fifty dollars and over can not be enforced, unless, (1) the buyer receives part of the goods, (2) the buyer gives something in earnest to bind the bargain. This section does not apply to contracts for labor, nor where one goes to a mechanic and orders the manufacture of an article. On this point there is a conflict in the decisions. It is held by some courts that if the buyer gives an order for the manufacture of an article which is usually kept in stock, it is within the statute, but that if he orders something of a particular pattern to be made to suit his own fancy the statute does not apply, and this appears to be the weight of authority. Sales at auction are within the statute, and it is the duty of the auctioneer when he announces a sale to make a memorandum of it or to deliver the goods. In order to make a delivery of a part of the goods effective, the delivery must be complete and be accepted by the buyer; so where it is desired to bind the bargain by a delivery of something in earnest, the payment must be made if in money, or the article actually delivered if it is something else than money, and this may be done at any time before suit, unless the statute requires it to be done at the time the bargain is made.

As to the form of the memorandum necessary to bind a bargain for sale of goods, what has already been said of the requisites of the memorandum to bind agreements for the sale of lands will apply.

§ 500. Delivery.-As we have seen in what has been said, if the value of the chattel sold is fifty dollars or more, and it is not convenient to make prompt delivery, the contract of sale may be made binding by a memorandum or by the payment of part of the purchase-money. And a delivery of a part of the goods sold and an acceptance of them by the buyer will bind the bargain. Where nothing is said as to the time for payment and delivery, they are both to be done at the same time. In all sales where anything remains to be done by the buyer, such as the giving of a note or security for the purchase-money, the property does not vest in the buyer until that condition is performed, unless it is waived by the seller. Delivery to the agent of the buyer, or to a carrier for him, is a good delivery, and where no particular mode of carriage is named in the contract, the seller may send the goods by any of the customary modes of transportation. There may be a symbolical delivery of the things sold, as by giving the key of the warehouse which contains them to the buyer. Marking the goods sold with the name of the buyer, or setting them apart by his request, in a place designated by him, may constitute a good delivery. If no place for delivery is fixed by the contract, the rule is that they are to be delivered at the place where the contract is made, or where the goods sold are kept for sale. A note payable in specific articles, as in wheat or any other commodity, must be presented for payment at the farm or place of business of the maker of the note. Secret sales of personal property, which is left in the possession of the seller, are not absolutely void, but the retaining of possession by the seller is a strong circumstance tending to show that the sale was a sham, especially where the seller is in debt and embarrassed at the time. The federal courts hold that a bill of sale is fraudulent as to third

persons, unless possession is given to the buyer. The decisions of the state courts are not all in harmony with this rule.

§ 501. Contracts of bailment.-Bailment is the delivery of one's personal property to another for a temporary purpose, to be returned to the owner when the

purpose is fulfilled. Some writers give five kinds of bailment, but Story's classification is simpler. He gives three: (1) Bailment for the benefit of the bailor. (2) For the benefit of the bailee. (3) For the benefit of both. The degree of care to be exercised by the bailor depends upon the character of the bailment and the character of the article bailed. A mere borrower of another's property, who is to make no return for the use of it and is a bailee for his own benefit, is held to the exercise of the highest degree of care, or extreme care. One who hires a horse from another is a bailee for the benefit of both parties, and is not required to exercise so high degree of care as a bailee for his own benefit, but the care must be such as a prudent person would exercise with reference to his own property, or what is called ordinary care. Where property is left by the owner with another for safe keeping, without paying or agreeing to pay therefor, it is a bailment for the exclusive benefit of the bailor, and only a slight degree of care is required of the bailee. Of course, one is not bound to become a gratuitous bailee, and a promise to become such is not binding, but if goods are received by a gratuitous bailee he must care for them according to his promise. A common carrier is a bailee who is bound to receive goods and deliver them where directed without loss or injury unless prevented by the act of God or the public enemy. A carrier who does not hold himself out to carry for the public, but only occasionally transports goods for