his own name. Thus it has come about that the purchaser of a chose in action obtains a legal title to it and secures privileges of ownership over it which are as effective as in the case of a purchase of corporeal personalty.

13. The Civil Law; Scotland; Louisiana. The civil law recognizes choses in action and other incorporeal personalty as proper subject-matter of a sale.1 This is the rule in Scotland, although a sale of such property would not be governed by the provisions of the Sale of Goods Act. However, sales of incorporeal rights in that country are not prohibited by the statute. Accordingly, a chose in action or even a spes, or chance, is still the subject-matter of a sale there. A Scotch court has held that a contract to furnish eleven-horse power of the steam-power of a particular engine is a sale and not a lease.4

3

Articles 2448 and 2449 of the Louisiana Civil Code treat every sort of property, whether corporeal or incorporeal, as the subject of sale.

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14. Is Money a Proper Subject of Sale? - Money, it has been said, should not be included in the term "goods," because it is ordinarily the price of the subject-matter of the contract. The Roman law appears to have treated the transfer of money for a money price as an exchange, and not as a sale. Among modern civilians, however, the view prevails that a contract for the transfer of title to money, whether to specific coins or to a round sum, will amount to sale, if the money is dealt with as a ware. Certain forms of money are

1 Moyle, Contract of Sale in the Civil Law, 17; Sohm's Institutes of the Roman Law, 396.

2 The term for goods in Scotland is "corporeal movables," and the Sale of Goods Act is expressly limited to this kind of personal property (§ 62).

'Brown's Sale of Goods (1st ed.), 29.

Clark v. Stewart, 10 Sc. L. R. 152 (1872). In Ullman v. St. Louis Fair Association, 167 Mo. 273; 66 S. W. 949 (1902), an agreement was construed as a "sale of the privilege of gambling with the public who patronized defendant's race track," and not a "lease of rights and franchises."

Campbell on Sales (2d ed.), 3, 4.

• Moyle, Contract of Sale in the Civil Law, 24.

7 Windscheid's Lehrbuch des Pandektenrechts, § 385.

constantly bought and sold as commodities, and even when these are not at a premium in the terms of other forms of legal tender, there seems to be no reason why they should not be the subject of a technical sale.1

The Uniform Sales Act,2 following the language of the Sale of Goods Act, excludes money from its definition of goods.

§ 4. Existing and Future Goods.

15. At Law. In order that goods may be the subject of a bargain and sale, that is, of a present sale under which title passes to the purchaser at once by virtue of the contract, they must be in existence and owned by the seller, when the contract is made. "A man cannot grant or charge that which he hath not." Hence a contract for the present sale of goods, thereafter to be manufactured or acquired by the seller, can operate only as an agreement to sell. To this rule there seems to be no exception, at present, in England. The Uniform Sales Act follows the English statute on this point.5

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16. Potential Existence. - Benjamin cites Grantham v. Hawley 7 for the proposition that "things which are the natural product or expected increase of something already belonging to the vendor" have a potential existence in contemplation of law, and may be the subject-matter of a present sale. The doctrine of this case has been adopted by most courts in the United States, which hold that the future offspring of the seller's animals, or the products therefrom, or the future

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1 Fowler v. N. Y. Gold Exch. Bk., 67 N. Y. 138, 146 (1876). "It is not claimed that gold is to be distinguished in this transaction from any other commodity or article of commerce. It was treated by the parties as an article of merchandise, the subject of purchase and sale, and not as current coin, a part of the currency of the land."

2 Mass. L. 1908, ch. 237, § 76.

56 & 57 Vict. ch. 71, § 62.

• Chalmers' Sale of Goods Act (2d ed.), § 5; Langton v. Higgins, 4 H. & N. 402 (1859).

5 Mass. L. 1908, ch. 237, § 5.

Sales (Am. ed., 1899), 85; (5th Eng. ed.), 131.

Hobart, 132 (1616).

8 Hull v. Hull, 48 Conn. 250 (1880).

→ Van Hoozer v. Cory, 34 Barb. (N. Y.) 9 (1860).

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crops from land, or wages to be earned under an existing contract,2 or an approved claim against a benevolent association for personal injuries,3 or a mortgage thereafter given pursuant to an existing contract therefor, may be the subject of a present sale. In such a case the grant is treated as absolute and perfect, when made, vesting a potential title, which ripens into an actual title the moment the property comes into existence, so that an attempted sale and transfer thereof to a second bona fide purchaser passes no title. In some jurisdictions there is a tendency to limit the decision in Grantham v. Hawley to the spontaneous products of the earth and to crops that have been planted before the contract is made. The Supreme Court of Iowa holds that a chattel mortgage on crops, to be grown in the future, does not attach to such crops unless and until they come into existence and are acquired by the mortgagor. Hence, if the mortgagor disposes of his interest in the land before the crops come into existence, his mortgagee gets no lien upon them." On the other hand, it has been held in California, that, in case of a chattel mortgage on an unplanted crop "there is a potential existence which sustains the lien of the mortgage," and that "after this lien is created, insolvency proceedings" against the mortgagor cannot affect the lien; nor is the lien affected by a declaration of homestead after the mortgage but before the crop is planted.

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Even before the Uniform Sales Act was drafted, some of the

1 Briggs v. United States, 143 U. S. 346, 354; 12 Sup. Ct. 391 (1891); Burdick's Cases on Sales, 636.

2 Manly v. Betzer, 91 Ky. 596; 16 S. W. 464 (1891); Burdick's Cases on Sales, 14.

Lawson v. Lyon, 136 Ga. 214, 220; 71 S. E. 149 (1911).

Henderson v. Jennings, 228 Pa. 188, 193; 77 At. 453 (1910); property in the mortgage held to have passed as of the date of the contract for its sale, though the mortgage was not then in existence.

McCarty v. Blevins, 5 Yerger (Tenn.), 195 (1833); Burdick's Cases on Sales, 13.

Rochester D. Co. v. Rasey, 142 N. Y. 570; 37 N. E. 632 (1894); Burdick's Cases on Sales, 15; Merch. Bk. v. Lovejoy, 84 Wis. 601; 55 N. W. 108 (1893); Brown v. Nelson, 61 Neb. 765; 89 N. W. 498 (1901). 7 McMaster v. Emerson, 109 Ia. 284; 80 N. W. 389 (1899).

Hall v. Glass, 123 Cal. 550; 69 Am. St. R. 77; 56 Pac. 336 (1899); Burdick's Cases on Sales, 637.

States had limited the doctrine of Grantham v. Hawley by legislation referred to below.1 Louisiana, however, appears to have codified the doctrine.2

17. Chattel Mortgages on After-acquired Goods. - Chattel mortgages frequently contain provisions that the mortgagor may dispose of the mortgaged articles, replacing them with goods which are to belong to the mortgagee. Such new articles are treated generally as future goods, and these provisions as agreements to sell and not as contracts of present sale. Some courts, however, interpret these clauses as establishing the relation of principal and agent between the mortgagee and mortgagor, and hold that the title to the new property, purchased with the proceeds of the old, vests at once in the mortgagee. Accordingly, if the mortgagor becomes bankrupt, and his assignee transfers such property to a bona fide purchaser, the latter does not acquire title. If both parties actually intend that the mortgagor shall act as the mortgagee's agent in acquiring the property, effect may be given to such intention, in the absence of a statute prohibiting it. Such cases are not usual. If A purports to make a present sale or a mortgage to B of goods which he does not own but which he afterwards acquires, A should be estopped to deny his ownership at the time of the sale or mortgage, if B entered into the transaction on the faith of A's ownership. Such estoppel should not operate

1 Code of Ala. 1907, § 4894 reads: "A mortgage of unplanted crops of agricultural products, executed on or after the first day of Jany. of the year in which such crops are grown, conveys legal title thereto in all respects as if such crops were already planted." Applied in Keyser v. Maas, 111 Ala. 465; 36 So. 738 (1897). Arkansas requires the crop to be planted within twelve months after the execution of the mortgage. Kirby's Digest, 1904, § 5406, applied in Delta Cotton Co. v. Ark. Cotton Oil Co., 80 Ark. 431; 97 S. W. 440 (1906). South Carolina has a similar statute, Civil Code, 1902, § 3005. See Minn. G. S. of 1894, § 4154; Rev. L. 1905, § 3475, applied in Wood v. Rippe, 93 Minn. 36; 100 N. W. 386 (1904).

2 Revised Civil Code, Art. 2456, is as follows: "A sale is sometimes made of a thing to come, as of what shall accrue from an estate of animals yet unborn, or such like other thing, although not yet existing." This provision is not in the Code Napoleon.

3 Sawyer v. Strong, 86 Me. 541; 30 At. 111 (1894); Burdick's Cases on Sales, 18.

Rowley v. Bigelow, 12 Pick. (29 Mass.) 306, 315; 23 Am. Dec. 607 (1832); Maskelinski v. Wazsinenski, 20 N. Y. Supp. 533 (1892).

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against bona fide purchasers from A,' although some courts have extended it to them.2 Of course, if B knows that A does not own the goods at the time of the professed sale or mortgage, there is no ground for an estoppel, and, certainly, there can be no actual transfer of title. Such professed transfer should be treated only as a contract to pass title in the future, and not as vesting in the vendee a potential title of the kind recognized in the cases following Grantham v. Hawley.3

18. In Equity.

An agreement purporting to accomplish the present sale of future goods is not dealt with in equity as at law. On the one hand, it is not treated as a mere contract to sell. On the other hand, it is not viewed as effecting a sale of the goods upon their acquisition by the vendor or mortgagor, notwithstanding the language of some distinguished judges.* It is construed as an agreement operating upon the goods, as soon as they are acquired, to the extent of creating a lien upon

1 See The Idaho, 93 U. S. 575, 582 (1876); Thistle v. Buford, 50 Mo. 278, 281 (1872); Frazer v. Hilliard, 2 Strob. (S. C.) 309 (1847); Coolidge v. Ayers, 76 Vt. 405, 408; 57 At. 970 (1904).

22 Smith's Leading Cases (8th Am. ed.), 858, notes.

Kelley v. Goodwin, 95 Me. 538; 50 At. 711 (1901); Harding v. Lewenberg, 174 Mass. 394; 54 N. E. 870 (1899). Mississippi holds a peculiar view on this subject, as appears from the following quotation from Fidelity & Deposit Co. v. B. F. Sturtevant Co., 86 Miss. 509, 521; 38 So. 783; 109 Am. St. R. 716 (1905). "There is, in this State, another well-recognized class of cases where after-acquired property may be mortgaged under well-defined limitations and restrictions. A mortgagor who has an actual interest in præsenti in certain property may mortgage, not only that property, but also such other property as the mortgagor may thereafter acquire, provided always said future acquisitions are to be used in and about the business, or are attached or appurtenant to and necessary for said business, or are the natural products arising from the operation of said business, constituting a tangible, substantial, and existing predicate for the contract. And even then this doctrine is subject to the limitation that it must be shown that the description of the property is definite, and the instrument itself must specifically describe it, either as property which is acquired in and belongs naturally, if not necessarily, to the original business, or as property which would be put in a certain building, place, or locality."

In Holroyd v. Marshall, 10 H. L. C. 191, Lord Chelmsford says: "At law, property non-existing, but to be acquired at a future time, is not assignable; in equity it is so." See also McCaffray t. Woodin, 65 N. Y. 459, at p. 467 (1875).