them,1 or an equitable interest in them.2 The general property in the goods remains in the vendor, and he can transfer it to a second bona fide purchaser free from the lien or equitable interest of the first purchaser. In Massachusetts, provisions such as we have been considering become effectual in equity if the transferee takes and keeps possession of the property under the contracts, but not otherwise.3 19. Sale of a Chance. In Scotch law, a contract purporting to effect the present sale of a chance, such as the cast of a net, operates as a present sale of the incorporeal thing." "Such a chance is a res in the wide jural sense of the word." 5 English law treats it as a contract for the sale of the subject of the chance, and unless falling under the ban of illegality because a wager, it will be enforced as an executory agreement, even though the chance produces nothing. As a present sale, it has no validity." What appears to be a contract for the sale of a chance may be in reality an agreement for the hire of materials and labor.8 20. Goods which have perished. If the subject-matter of an agreement for the sale of specific goods has perished before the agreement is made, and this is unknown to the seller, no contract obligation ensues. It is deemed to have perished when it is so far destroyed that it ceases to answer the description of the thing sold. The destruction of specific goods with 1 Kribbs v. Alford, 120 N. Y. 519; 24 N. E. 811 (1890); Kelley v. Goodwin, 95 Me. 538; 50 At. 711 (1901). 2 Joseph v. Lyons, 15 Q. B. D. 280 (1884); Burdick's Cases on Sales, 20. › Harriman v. Woburn El. L. Co., 163 Mass. 85; 39 N. E. 1004 (1895); Harding v. Lewenberg, 174 Mass. 394; 54 N. E. 870 (1899). 4 Bell's Principles, § 92; Brown's Sale of Goods Act (1st ed.), 29. Mackintosh's Roman Law of Sale, 25. • Hitchcock v. Giddings, 4 Price, 135, at p. 140 (1817); Hanks v. Palling, 6 E. & B. 659 (1856); Burdick's Cases on Sales, 21; cf. Johnson v. Curry, 134 Ga. 583; 68 S. E. 298 (1910); the assignor of a lease (made by a life tenant to him, which warranted to him the right to use the timber on the leased property for turpentine purposes) was held not to warrant to his assignee that the original lessor had the right to make such a grant, or that he would survive the period of the lease. 7 Low v. Pew, 108 Mass. 347 (1871); Burdick's Cases on Sales, 22. 8 Mackintosh, supra; Benjamin on Sales (Am. ed., 1899), 89. • Couturier v. Hastie, 5 H. L. Cas. 673 (1856). out the fault of either party, after the contract is made, but before title has passed to the buyer, avoids the contract, on the principle that when the performance of a contract depends on the continued existence of a given thing, a condition is implied that the impossibility of performance arising from the destruction of the thing shall excuse the performance.1 This doctrine has been codified in the English Sale of Goods Act,2 and by the Uniform Sales Act is extended to cases where a part of the goods perish, or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character. In such cases the buyer has the option of compelling the seller to transfer the property in all of the existing or of the non-deteriorated goods, upon paying the full agreed price, if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer, if the contract was divisible.* The above stated doctrine does not apply to a case where the parties suppose a property right exists, but are the victims of a mutual mistake of law, as distinguished from a mistake of fact.5 § 5. Contract for Sale, or for Labor and Materials. 21. An agreement to sell goods, to be made or acquired in the future, is not a wager, but a valid executory contract." 1 Dexter v. Norton, 47 N. Y. 62 (1871); Burdick's Cases on Sales, 24; Howell v. Coupland, 1 Q. B. D. 258 (1876). 256 & 57 Vict. ch. 71, § 7. Mass. L. 1908, ch. 237, § 8 (2). 4 Automatic Time-Table Advertising Co. v. Automatic Time-Table Co., 208 Mass. 252; 94 N. E. 463 (1911), holding this subsection not to apply when a part of the goods were damaged by fire, but not destroyed nor so greatly deteriorated as to be substantially changed in character. 5 Stewart v. Ticonic Nat. Bank, 104 Me. 578; 72 At. 741 (1908). Hibblewhite v. McMorine, 5 M. & W. 462 (1839); Clarke v. Foss, 7 Biss. 541, 552 (1878); Hill v. Levy, 98 Fed. 94 (1899); Cleague v. Laidley, 149 Fed. 346; 79 C. C. A. 284 (1906). "It is the public policy of the United States to suppress wagers, but it is also its policy to enforce the obligations of valid contracts, and one who would avoid his agreements and escape his obligations by his own wrong should be required to establish it by clear and convincing proof. Contracts for the future delivery of grain and other personal property are lawful and valid. The legal presumption is that the parties who make them intend to perform them, and the burden is on him True, the seller may be excused from tendering the entire quantity named in the contract, because of an implied condition that such quantity was to be obtained from a given source, which has failed to yield that quantity. To this extent the courts are agreed. There is judicial unanimity, also, in holding that if the contract relates to goods not necessarily to be produced or manufactured by the seller, it is one for the sale of goods, and not for labor and materials. If, however, by the express or implied terms of the contract, the seller is to expend labor upon the subject-matter of the agreement before it is in a deliverable state, the contract is treated by some courts as one for labor and materials and not for sale. The question has arisen, generally, under the Statute of Frauds; and various tests have been suggested by the courts for its determination. 22. Present Sale Test. In one of the earliest reported cases upon this point, the court held that a contract to make and deliver a chariot was not within the statute, "which relates only to contracts for the actual sale of goods, where the buyer is immediately answerable without time given him by special agreement, and the seller is to deliver the goods immewho avers that the illegal intention of one or more of these parties has made them void to establish his allegation by plenary proof. Clews v. Jamieson, 182 U. S. 461, 489; 21 Sup. Ct. 845; 45 L. ed. 1183; Pixley v. Boynton, 79 Ill. 351. An intention of one or both of the parties to sell such an agreement, or their rights under it, before the time of delivery, does not avoid it. Parties have the same right to buy contracts for the future delivery of personal property with the intention of selling them that they have to buy the property with such an intention." Pearson v. McKinney, 160 Cal. 649; 117 Pac. 919 (1911); Forsyth Mfg. Co. v. Castlen, 112 Ga. 199; 37 S. E. 485 (1900); Whitesides v. Hunt, 97 Ind. 191; 49 Am. R. 441 (1884), contract to buy on a margin held a wager and illegal. Conner v. Robertson, 37 La. Ann. 814; 55 Am. R. 521 (1885), with exhaustive review of English and American authorities, holding the contract not illegal as a wager. 1 Pearson v. McKinney, 160 Cal. 649; 117 Pac. 919 (1911). Contract for sale of orange trees to be grown by defendant, the implied condition being that they grow. Russell v. Camp, 9 Ga. App. 691; 72 S. E. 60 (1911). "Where parties enter into a contract whereby one agrees to sell and the other to buy a designated amount of cotton, stated in the contract as being a portion of a particular crop then in existence, a condition is implied (unless the contrary is stated) that delivery of the specified amount is to be required only in the event the designated crop yields that amount." diately." 1 This view was followed, without hesitation, by a court consisting of Lord Mansfield and others, in deciding an action for the breach of an oral contract to deliver at a future time a load and a half of wheat which was unthreshed when the agreement was made.2 23. Consideration Test. - Twenty-five years later the reasons for these decisions were rejected in an action for the breach of an oral contract to sell and deliver 3,000 sacks of flour at the seller's mill, although the decisions were sustained on the ground that the contracts in those cases were for work and materials. It was admitted that the distinction between the case at bar and Clayton v. Andrews might seem a very nice one, "but still," it was declared, "the work to be performed in threshing made, though in a small degree, a part of the contract." According to this view, the nature of the consideration furnished for the promise to pay determined whether the contract was one for sale or for labor and materials. 24. Test of Deliverability. — A different test was announced in a case brought for not accepting a quantity of oak-pins to be cut out of slabs owned by plaintiff, and to be delivered to the defendant. "The subject of this contract did not exist in rerum natura; it was incapable of delivery and acceptance." and hence not within the Statute of Frauds. "If the thing be capable of delivery, at the time, why is it not delivered? But the same reason does not apply when the goods are not deliverable.” 4 25. The Special Order Test. Soon after this decision, we find still another test suggested in an action brought for breach of contract to sell and deliver 100 sacks of flour, thereafter to be ground by the seller. Abbott, C. J., said: "In Towers v. Osborne, the chariot which was ordered to be made would never but for the order have had any existence. But here the plaintiffs were proceeding to grind the flour for the purpose of general sale, and sold this quantity to the defendant as part 1 Towers v. Osborne, 1 Strange, 506 (1724). 4 Groves v. Buck, 3 M. & S. 178 (1814). of their general stock. The distinction is, indeed, somewhat nice; but the case of Towers v. Osborne is an extreme case, and ought not to be carried further." 1 2 26. Upon whose Materials is the Labor expended? - A fifth test was enunciated in a suit brought for the price of certain machinery made by the plaintiff upon the special order of the defendant; and in an action for breach of contract to take and pay for a quantity of timber to be cut and put into a deliverable state by the plaintiff. It is stated in these terms by Bayley, J.: "If you employ another to work up his own materials in making a chattel . . . he cannot maintain an action for work and labor, because his labor was bestowed on his own materials, and for himself, and not for the person who employed him." 27. Essential Ingredient Test. Still another test was applied in a suit for the price agreed to be paid by the defendant to the plaintiff for printing a book written by the defendant. "The true criterion is, whether work is of the essence of the contract, or whether it is the materials supplied." 4 28. Present Test in England. - None of the foregoing tests proved to be satisfactory. Later, in an action for the breach of contract to take and pay for two sets of artificial teeth, made by the plaintiff upon the special order of defendant's testatrix, the whole subject was carefully considered, and the conclusion reached that "if the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; but if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered." 5 The rejection of the old tests and the formulation of a new one were made easy for the English courts by Lord Tenterden's Act, which extended 1 Garbutt v. Watson, 5 B. & Ald. 613 (1822). 2 Atkinson v. Bell, 8 B. & C. 277 (1828). Smith v. Surman, 9 B. & C. 561 (1829). 4 Clay v. Yates, 1 H. & N. 73 (1856). Lee v. Griffin, 1 B. & S. 272 (1861); Burdick's Cases on Sales, 26. 9 Geo. IV., ch. 14, § 7 (1828). The English Sale of Goods Act, § 4 (2) reads as follows: "The provisions of this section apply to every such |