to sell.

$858. An agreement to sell is a contract by which Agreement one engages, for a price, to transfer to another the title to a certain thing.

to buy.

$859. An agreement to buy is a contract by which Agreement one engages to accept from another, and pay a price for the title to a certain thing.

to sell and

buy.

$ 860. An agreement to sell and buy is a contract Agreement by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him, and to pay a price therefor.

be the sub

$861. Any property which, if in existence, might be What may the subject of sale, may be the subject of an agree-Ject of the ment for sale, whether in existence or not.

Hale v. Rawson, 4 C. B. [N. S.], 85.

contract.

to sell real

S 862. An agreement to sell real property binds Agreement the seller to execute a grant in the form and manner property. prescribed by the chapter on TRANSFERS OF REAL PROPERTY.

This provision, in connection with that to which it refers,
is intended to provide a uniform mode of transfer.
There can be very little question that no more could,
even now, be required from the seller. This section
will give the buyer a right to insist upon a simple
and well known conveyance, if he desires it.

S863. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant, covenants of seizin, quiet enjoyment, further assurance, general warranty, and against incumbrances.

Usual cove deeds of

nants in

grant.

S864. The covenants mentioned in the last section Language must be in substance as follows:

"The party of the first part covenants with the party of the second part, that the former is now seized in fee simple of the property granted; that the latter shall enjoy the same without any lawful

of usual covenants,

disturbance; that the same is free from all incum brances; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same."

This provision is new. Its object is the same as that of section 485, namely, to reduce the length of conveyances, and to provide a plain and sufficient form, as is done by the English statute, 8 & 9 Vict. c. 119. The commissioners believe that the form here given is sufficient to cover all the intricately worded stipulations usually given in such cases.

Contract

for sale of personal property.

ARTICLE III.

FORM OF THE CONTRACT.

SECTION 865. Contract for sale of personal property.

866. Contract to manufacture.

867. Contract for sale of real property.

868. Transfer of real property.

$865. No sale of personal property, or agreement to buy or sell it, for a price of fifty dollars or more, is valid unless :

1. A memorandum of the contract, showing the parties, their consent, and the subject of sale, is made in writing, and subscribed2 by the party to be charged;

or,

2. The buyer accepts and receives part of the thing sold, or, when it consists of a thing in action, part of the evidences thereof; or,

3. The buyer, at the time of sale, pays a part of the price.

'There may possibly be some doubt whether a simple

contract binding one to buy, but not binding the other to sell, is now within the statute. It clearly ought to be within it.

'This means that the names of the parties must be
placed at the foot of the agreement (James v. Patten,
6 N. Y., 10; rev'g S. C., 8 Barb., 344; Davis v.
Shields, 26 Wend., 341).

4

"It is not essential that the delivery of part of the pro-
perty should take place at the time of sale (Sprague
v. Blake, 20 Wend., 61; M'Knight v. Dunlop, 5 N. Y.,
537; overruling Clark v. Tucker, 2 Sandf., 157; Sey-
mour v. Davis, id., 239). It is essential not only that
the buyer should receive, but that he should also
accept the thing sold (Hunt v. Hecht, 8 Exch., 814;
Outwater v. Dodge, 6 Wend., 397; Kent v. Hutchin-
son, 3 Bos. & Pul., 233).

A payment after the sale will not make it binding (Bis-
sell v. Balcom, 40 Barb., 98).

2 R. S., 135, § 3.

manufac

$866. An agreement to manufacture a thing, from Contract to materials furnished by the manufacturer or by an- ture. other person, is not within the provisions of the last section.

Donovan v. Willson, 26 Barb., 138; Parker v. Schenck,
28 Barb., 38; Courtwright v. Stewart, 19 Barb., 455;
Bronson v. Wiman, 10 Barb., 406; Robertson v.
Vaughn, 5 Sandf., 1; Sewall v. Fitch, 8 Cow., 215;
Crookshank v. Burrell, 18 Johns., 58.

for sale of

perty.

S867. No agreement for the sale of real property, Contract or of any estate therein, is valid, unless a memo- real prorandum thereof, showing the parties, their consent, and the subject of sale', is made in writing, and subscribed by the party to be charged, or unless the contract has been partially performed by the party seeking to enforce it, and such part performance has been accepted by the other."

'These particulars are specifically mentioned, in order to

avoid the possibility of an interpretation requiring
the consideration to be stated.

2 R. S., 135, § 8; except that "the party to be charged"
is substituted for "the vendor," so as to establish a
rule uniform with that concerning sales of personal
property.

2 R. S., 135, § 9, retains the equitable doctrines of part
performance. This provision is doubtless rather
broader than the rules of equity would sustain, as it
has always been required that, to take the case out
of the statute, the party seeking to enforce an oral

Transfer of

real property.

contract must show that he cannot be replaced in his former position (Malins v. Brown, 4 N. Y., 403; Bennett v. Abrams, 41 Barb., 619; Williston v. Williston, id., 635; Lowry v. Tew, 3 Barb. Ch., 407; Rhodes v. Rhodes, 3 Sandf. Ch., 279; Wolfe v. Frost, 4 id., 72; German v. Machin, 6 Paige, 238; Frame v. Dawson, 14 Ves., 386.)

But it is to be remembered that the equitable doctrine of part performance was always in contradiction of the letter of the statute, and that the courts might therefore well hesitate to go so far as their sense of abstract justice would have dictated. In reducing their doctrines to the form of a statute, it seems only proper to adopt the principle which lies at the foundation of those decisions, without the restrictions which were imposed from a regard for the adverse provisions of the statute of frauds.

This provision is inserted in this place, instead of being left to the chapter on SPECIFIC PERFORMANCE, because it is thought that the fusion of law and equity makes this the proper course.

S868. The form of a transfer of real property is described by the chapter on such transfers.

See section 485.

CHAPTER II.

RIGHTS AND OBLIGATIONS OF THE SELLER.

ARTICLE I. Rights and duties before delivery.

II. Delivery.

III. Warranty.

When seller

must act as

ARTICLE I.

RIGHTS AND DUTIES BEFORE DELIVERY.

SECTION 869. When seller must act as depositary.

870. When seller may resell.

S869. After personal property has been sold, and depositary. until the delivery is completed, the seller has the rights and obligations of a depositary for hire,' except that he must keep the property, without charge, until

the buyer has had a reasonable opportunity to remove it.2

'The seller is bound to keep the thing sold safely, even

if the buyer does not come at the proper time to
take it (Sheldon v. Skinner, 4 Wend., 525). But he
is entitled to compensation for his trouble (id.) And
unquestionably he may discharge himself of the
burden upon due notice. See the chapter on DEPOSIT
FOR HIRE. He may also deposit the thing with a
third person (Bement v. Smith, 15 Wend., 493).

2 This is a matter of course.

may resell.

S870. If a buyer of personal property does not When seller pay for it according to contract, and it remains in the possession of the seller, after payment is due, the seller may rescind the sale,' or may enforce his lien for the price in the manner prescribed by the Title on LIENS.2

'Fancher v. Goodman, 29 Barb., 315; Niel v. Cheves, 1

Bail. [S. C.], 537.

Fancher v. Goodman, 29 Barb., 315; Mallory v. Lord,
id., 454; Sands v. Taylor, 5 Johns., 395; Bement
v. Smith, 15 Wend., 497; Bogart v. O'Regan, 1 E.
D.Smith, 590; Maclean v. Dunn, 4 Bing., 722.

ARTICLE II.

DELIVERY.

SECTION 871. Delivery on demand.

872. Delivery, where made.

873. Expense of transportation.

874. Notice of election as to delivery.

875. Buyer's directions as to manner of sending thing sold.

876. Delivery to be within reasonable hours.

demand.

S871. One who sells personal property, whether it Delivery on was in his possession at the time of sale, or not, must put it into a condition fit for delivery,' and deliver it to the buyer within a reasonable time3 after demand, unless he has a lien thereon.

'Gerard v. Prouty, 34 Barb., 454.

In every sale there is an implied stipulation to deliver
(Buddle v. Green, 27 L. J. [Ex.] 33; 3 H. & N. [Am.
ed.] 996), which is broken by the refusal of a third