SALE, SALE NOTE, SALE AND RETURN

SALE, contracts. An agreement by which one of the contracting parties, called the seller, gives a thing and passes the 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. Pard. Dr. Com. n. 6; Noy's Max. ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth. Vente, n. 1; 1 Duverg. Dr. Civ. Fr. n. 7.

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 the burden it imposes is the payment of a sum of money, is, when accepted, in the nature of a sale. When partition is made between two or more joint owners of a chattel, it would seem, the contract is in the nature of a barter. See 11 Pick. 311.

3. To constitute a valid sale there must be, 1. Proper parties. 2. A thing which is the object of the contract. 3. A price agreed upon; and, 4. The consent of the contracting parties, and the performance of certain acts required to complete the contract. These will be separately considered.

4. - 1. As a general rule all persons sui juris may be either buyers or sellers. But to this rule there are several exceptions. 1. There is a class of persons who are incapable of purchasing except sub modo, as infants, and married women; and, 2. 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 that relation exists; these are trustees, guardians, assignees of insolvents, and generally all persons who, by their connexion with the owner, or by being employed concerning his affairs, have acquired, a knowledge of his property, as attorneys, conveyancers, and the like. See Purchaser.

5. - 2. There must be a thing which is the object of the sale, for if the thing sold at the time of the sale had ceased to exist it is clear there can be no sale; if, for example, Paul sell his horse to Peter, and, at the time of the sale the horse be dead, though the fact was unknown to both parties: or, if you and I being in Philadelphia, I sell you my house in Cincinnati, and, at the time of the sale it be burned down, it is manifest there was no sale, as there was not a thing to be sold. It is evident, too, that no sale can be made of things not in commerce, as the air, the water of the sea, and the like. When there has been a mistake made as to the article sold, there is no sale; as, for example, where a broker, who is the agent of both parties, sells an article and delivers to the seller a sold note describing the article sold as "St. Petershurg clean hemp," and bought note to, the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786, 788; 5 B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N. S. 747 9 M. &, W. 805. Holt. N. P. Cas. 173; 1 M. & P. 778.

6. 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; an agreement to sell one hundred bushels of wheat, to be measured out of a heap, does not change the property, until the wheat has been measured. 3 John. 179; Blackb. on Sales, 122 , 5 Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick. 280; 15 John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.

7. - 3. To constitute a sale there must be a price agreed upon; but upon the maxim id certum est quod reddi certum potest, a sale may be valid although it is agreed that the rice for the thing sold shall be determined by a third person. 4 Pick. 179. The price must have the three following qualities, to wit: 1. It must be an actual or serious price. 2. It must be certain or capable of being rendered certain. 3. It must consist of a sum of money.

8. - 1. The price must be an actual or serious price, with an intention on the part of the seller, to require its payment; if, therefore, one should sell a thing to another, and, by the same agreement, he should release the buyer from the payment, this would not be a sale but a gift, because in that case the buyer never agreed to pay any price, the same agreement by which the title to the thing is passed to him discharging him from all obligations to pay for it. As to the quantum of the price that is altogether immaterial, unless there has been fraud in the transaction. 2. The price must be certain or determined, but it is sufficiently certain, if, as before observed, it be left to the deterimination of a third person. 4 Pick. 179; Poth. Vente, n. 24. And an agreement to pay for goods what they are worth, is sufficiently certain. Coxe, 261; Poth. Vente, n. 26. 3. The price must consist in a sum of money which the buyer agrees to pay to the seller, for if paid for in any other way, the contract would be an exchange or barter, and not a sale, as before observed.

9. - 4. The consent of the contracting parties, which is of the essence of a sale, consists in the agreement of the will of the seller to sell a certain thing to the buyer, for a certain price, and in the will of the buyer, to purchase the same thing for the same, price. Care must be taken to distinguish between an agreement to enter into a future contract, and a present actual agreement to make a sale. This consent may be shown, 1. By an express agreement. 2. By all implied agreement.

10. - 1. The consent is certain when the parties expressly declare it. This, in some cases, it is requisite should be in writing. By the 17tth section of the English statute, 29 Car. II. c. 3, commonly called the Statute of Frauds, it is enacted, "that no contract for the sale of any goods, wares, or merchan-dise, for the price of ú10 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized." This statute has been renacted in most of the states of the Union, with amendments and alterations,

11. It not unfrequently happens that the consent of the parties to a contract of sale is given in the course of a correspondence. To make such contract valid, both parties must concur in it at the same time. See Letter, com. law, crim. law, §2; 4 Wheat. 225; 6 Wend. 103; 1 Pick. 278 10 Pick. 326.

12. An express consent to a sale may be given verbally, when it is not required by the statute of frauds to be in writing.

13. - 2. When a party, by his acts, approves of what has been done, as if he knowingly uses goods which have been left at his house by another who intended to sell them, he will, by that act, confirm the sale.

14. The consent must relate, 1. To the thing which is the object of the contract; 2. To the price; and, 3. To the sale itself. 1st. Both parties must agree upon the same object of the sale; if therefore one give consent to buy one thing, and the other to sell another, there is no sale; nor is there a sale if one sells me a bag full of oats, which I understand is full of wheat; because there is no consent as to the thing which is the object of the sale. But the sale would be valid, although I might be mistaken as to the quality of the tiling sold. 20 John. 196 3 Rawle, 23, 168. 2d. Both parties must agree as to the same price, for if the seller intends to sell for a greater sum than the buyer intends to give, there is no mutual consent; but if the case were reversed, and the seller intended to sell for a less price than the buyer intended to give, the sale would be good for the lesser sum. Poth. Vente, n. 36. 3d. The consent must be on the sale itself, that is, one intends to sell, and the other to buy. If, therefore, Peter intended to lease his house for three hundred dollars a year for ten years, and Paul intended to buy it for three thousand dollars, there would not be a contract of sale nor a lease. Poth. Vente, n. 37.

15. In order to pass the property by a sale, there must be an express or implied agreement that the title shall pass. An agreement for the sale of goods is prima facie a bargain and sale of those goods; but this arises merely from the presumed intention of the parties, and if it appear that the parties have agreed, not that there shall be a mutual credit by which the property is to pass from the seller to the buyer, and the buyer is bound to pay the price to the seller, but that the exchange of the money for the goods shall be made on the. spot, no property is transferred, for it is not the intention of the parties to transfer any. 4 Wash. C. C. R. 79. But, on the contrary, when the making of part payment, or naming a day for payment, clearly shows an intention in the parties that they should have some time to complete the sale by payment and delivery, and that they should in the meantime be trustees for each other, the one of the property in the chattel, and the other in the price. As a general rule, when a bargain is made for the purchase of goods, and nothing is said about payment and. delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot take them away without paying the price. 5 B. & C. 862.

16. Sales are absolute or conditional. An absolute sale is one made and completed without any condition whatever. A conditional sale is one which depends for its validity upon the fulfilment of some condition. See 4 Wash. C. C. R. 588; 4 Mass. 405; 17 Mass. 606; 10 Pick. 522; 13 John. 219; 18 John. 141; 8 Verm. 154; 2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2 A.K. Marsh. 430.

17. Sales are also voluntary or forced, public or private.

18. - 1. A voluntary sale is one made without constraint freely by the owner of the thing sold; to such the usual rules relating to sales apply. 2. A forced sale is one made without the consent of the owner of the property by some officer appointed by law, as by a marshal or a sheriff in obedience to the mandate of a competent tribunal. This sale has the effect to transfer all the rights the owner had in the property, but it does not, like a voluntary sale of personal property, guaranty a title to the thing sold it merely transfers the rights of the person as whose property it has been seized. This kind of a sale is sometimes called a judicial sale. 3. A public sale is one made at auction to the highest bidder. Auction sales sometimes are voluntary, as when the owner chooses to sell his goods in this way, and then as between the seller and the buyer the usual rules relating to sales apply; or they are involuntary or foreed when the same rules do not apply. 4. Private sales are those made voluntarily and not at auction.

19. The above rules apply to sales of personal property. The sale of real estate is governed by other rules. When a contract has been entered into for the sale of lands, the legal estate in such lands still remains vested in the vendor, and it does not become vested in the vendee until he shall have re-ceived a lawful deed of conveyance from the vendor to him; and the only remedy of the purchaser at Iaw, is to bring an action on the contract, and recover pecuniary damages for a breach of the contract. In equity, however, after a contract for the sale, the lands are considered as belonging to the purchaser, and the court will enforce his rights by a decree for a specific performance; and the seller will be entitled to the purchase money. Will. on Real Prop. 127. See Specific performance.

20. In general, the seller of real estate does not guaranty the title; and if it be desired that he should, this must be done by inserting a warranty to that effect. See, generally, Brown on Sales; Blackb. on Sales; Long on Sales; Story on Sales, Sugd. on Vendors; Pothier, Vente; Duvergier, Vente; Civil Code of Louisiana, tit. 7; Bouv. Inst. Index, h. t.; and Contracts; Delivery; Purchaser; Seller; Stoppage in transitu.

SALE NOTE. A memorandum given by a broker to a seller or buyer of goods, stating the fact that certain goods have been sold by him on account of a person called the seller to another person called the buyer. Sale notes are also called bought notes, (q. v.) and sold notes. (q. v.)

SALE AND RETURN. When goods are sent from a manufacturer or wholesale dealer to a retail trader, in the hope that he may purchase them, with the understanding that what he may choose to take he shall have as on a contract of sale, and what he does not take he will retain as a consignee for the owner, the goods are said to have been sent on sale and return.

2. The goods taken by the receiver as on a sale, will be considered as sold, and the title to them is vested in the receiver of them; the goods he does not buy are considered as a deposit in the hands of the receiver of them, and the title is in the person who sent them. 1 Bell's Com., 268, 5th ed.