and gives to the hirer no proprietary right in them, and no lien or interest of any sort beyond the right to keep and use them for a stipulated time, it is not a sale, nor a contract to sell, although the lessor binds himself to sell upon the final payment of rent, and the hirer has the option to purchase by making the rent payments agreed upon. It is an agreement of hiring only, with an option to the hirer to become a purchaser.1 However, if the transaction assumes the form of a lease, with a proviso for a sale, for the purpose of evading statutes which require conditional sales or chattel mortgages to be registered, or if it is opposed to the policy of the local law which prohibits secret liens, the courts will refuse to treat it as a bailment, and will declare it a sale or a mortgage, according to the facts.2 The Uniform Sales Act, following the English Sale of Goods Act, declares that: "The provisions of this act relating to contracts to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge, or other security." 3 Whether a warehouse 53. Grain in Public Warehouses. man becomes the buyer or the bailee of the various lots of grain which he receives for storage, is a question upon which our courts have disagreed. On the one hand, it is declared that when grain "is thrown into the common heap, with the understanding that the receiver may take from it at pleasure and appropriate the same to the use of himself or others, on the condition of his procuring other wheat to supply its place, 1 Rowe v. Sharp, 51 Pa. St. 26 (1865); Brown v. Billington, 163 Pa. St. 76; 29 At. 904 (1894); Helby v. Matthews (1895), App. Cas. 471; 11 Rep. 1, distinguishing Lee v. Butler (1893), 2 Q. B. 318; 4 Rep. 563; Goss Printing Co. v. Jordan, 171 Pa. St. 474; 32 At. 1031 (1896); Burdick's Cases on Sales, 47; Link M. Co. v. Cont. Tr. Co., 227 Pa. 37; 75 At. 985 (1909). 2 Greer v. Church & Co., 13 Bush (Ky.), 430 (1877); Heryford v. Davis, 102 U. S. 235 (1880); Gross v. Jordan, 83 Me. 380 (1891); Comm. v. Harmel, 166 Pa. St. 89; 30 At. 1036 (1895). 3 Mass. L. 1908, ch. 237, § 75; L. of N. Y. 1911, ch. 571, § 155; Sale of Goods Act, 1893, § 61 (4). the dominion over the property passes to the depositary, and the transaction is a sale," On the other hand, the transaction has been declared a bailment.2 The latter view accords with the mercantile understanding of the transaction, and there is no legal difficulty in considering these depositaries "as bailees to keep, with power to change the bailor's tenancy in severalty into a tenancy in common of a proportionately larger mass and back again, and also with a continuous power of sale, substitution, and resale." 3 If, however, the grain is delivered and received under an agreement, express or implied from the course of dealing, that the warehouseman may use it as a part of his consumable stock, with the option of paying its market value or of returning the same amount of like quality, the transaction is a sale and not a bailment.4 § 8. The Price. 54. The payment of a money consideration or price, or an agreement therefor, is necessary to a sale of goods. This element distinguishes it from a gift. But the two transactions differ in other respects. In a present sale, delivery of the property is not necessary to pass title; while a gift of a specific chattel by words in presenti will not pass title without delivery; 5 although the delivery may precede the words of gift. Again, if a gift leaves the donor insolvent, it may be avoided by existing creditors without proof that it was made with intent to 6 1 Chase v. Washburn, 1 Ohio St. 244 (1853); cf. Barnes v. McRea, 75 Ia. 267 (1888). In the Iowa case the warehouseman had "the right to retain the grain on paying for it the highest market price." 2 Rice v. Nixon, 94 Ind. 97 (1884); Burdick's Cases on Sales, 651; Snydacker v. Blatchley, 177 Ill. 506; 52 N. E. 742 (1899). 3 Holmes, C. J., 6 Am. L. R. 465 (1872). 4 State v. Stockman, 30 Ore. 36; 46 Pac. 851 (1896); Barnes v. McRea, 75 Ia. 267; 39 N. W. 392 (1888). Noble v. Smith, 2 Johns. (N. Y.) 52 (1806); Cochrane v. Moore, 25 Q. B. D. 57 (1890); Jackson v. Lamar, 67 Wash. 385; 121 Pac. 851 (1912). But see Shaffer v. Stevens, 143 Ind. 295; 42 N. E. 620 (1896). • Wing v. Merchant, 57 Me. 383 (1869); Kilpin v. Ratley (1892), 1 Q. B. 582. defraud them, while a sale can be impeached by creditors only upon such proof.1 55. Sale or Barter. A money consideration also distinguishes a sale from a barter. It has been said that when a statute refers in terms to contracts of sale, it has no application to contracts of exchange,2 and this view has prevailed with some courts, but not with others. Under the commonlaw system of pleading and practice, it was error to describe an agreement to exchange goods as a sale, or to sue in debt instead of for a breach of contract.5 Again, as a power of sale under a statute, a decree, a deed, or authority of any kind, is strictly construed, the possessor of such a power has no authority to exchange or barter the property. But for most purposes the rules applicable to exchange are the same as those governing sales. Not infrequently, judicial opinions use the terms interchangeably.8 The Uniform Sales Act declares that "the price may be made payable in any personal property.' When the pur 99 1 Ruhl v. Phillips, 48 N. Y. 125; 8 Am. R. 522 (1871); Davis v. Schwartz, 155 U. S. 631; Book 39, L. ed. 289; 15 Sup. Ct. 237 (1895). Chalmers' Sale of Goods Act (2d ed.), 4. Massey v. State, 74 Ind. 368 (Intoxicating Liquor Statute) (1881). Howard v. Harris, 90 Mass. (8 Allen) 297 (Intoxicating Liquor Statute) (1864); Dowling v. McKenney, 124 Mass. 478 (Statute of Frauds) (1878). Mitchell v. Gile, 12 N. H. 390 (1841); Beirne v. Dunlap, 8 Leigh (Va.), 514 (1837); Slayton v. McDonald, 73 Me. 50 (1881). • Williamson v. Berry, 8 How. 495, 544 (1850); Edwards v. Cottrell, 43 Ia. 194 (1876); Cobb, Bates & Yerxa Co. v. Hills, 208 Mass. 270; 94 N. E. 265 (1911). 7 Anonymous, 3 Salk. 157 (1692); Emanuel v. Dane, 3 Camp. 299 (warranty) (1812); La Neuville v. Nourse, 3 Camp. 351 (caveat emptor) (1813); Hudson Iron Co. v. Alger, 54 N. Y. 173 (revenue law) (1873); First Nat. Bank v. Reno, 73 Ia. 145 (title passing without delivery) (1887); Safe Co. v. Bank, 25 S. D. 119; 125 N. W. 572 (1910); Raymond v. Colton, 104 Fed. 219; 43 C. C. A. 501 (Statute of Frauds) (1900); Franklin v. Gold Mining Co., 158 Fed. 941 (1907). 8 Sturm v. Boker, 150 U. S. 312, 329, 330; 14 Sup. Ct. R. 99, 104 (1893). "Where there is no obligation to return the specific article, and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and the title to the property is changed. The transaction is a sale." 9 Mass. L. 1908, ch. 237, § 9 (2). The third subsection reads: "(3) Where transferring or promising to transfer any interest in real estate con chaser has the right to make payment in goods, instead of money, and fails or refuses to perform his contract in this respect, the price agreed upon becomes a money demand.1 56. If Price is not stipulated. — In English law, it is not necessary to the validity of a contract to sell, nor of a present sale, that the price should have been expressly fixed by the parties. It is enough if the price can be inferred from their previous dealings, or if it is to depend on a future event; 2 or if it can be made certain as by reference to a price current at a specified time and place, or by reference to the price of gold on a given day, or by the verdict of a jury,5 or by the valuation of a third party. In the last case, if the chosen arbiter does not appraise the property, the contract to sell should be deemed avoided, inasmuch as it was conditioned upon his performance of the stipulated act; but if the purchaser has appropriated any of the goods, under such a contract, he is liable for a reasonable price; and if the failure of the arbiter to act is due to the fault of either party, he is liable in damages to the other. This topic is discussed more fully in a later chapter.10 stitutes the whole or part of the consideration for transferring or for promising to transfer the property in goods, this act shall not apply." 8 1 Porter v. Brown, 11 Ariz. 153; 89 Pac. 408 (1907); citing McGillin v. Bennett, 132 U. S. 445; 10 Sup. Ct. 122; 33 L. ed. 422 (1889); Baker v. Todd, 6 Tex. 273; 55 Am. Dec. 775 (1851). 2 Newell v. Smith, 53 Conn. 72 (1885). McConnell v. Hughes, 29 Wis. 537 (1872); Burdick's Cases on Sales, 52; Jones Cotton Co. v. Snead, 169 Ala. 566; 53 So. 988 (1910). "Under the provisions of the contract the price to be paid was the market price of middling cotton on the day the seller demanded the balance of the price, provided he notified the buyer before twelve o'clock on the day of the settlement." Ames v. Quimby, 96 U. S. 324 (1877). Shealy v. Edwards, 73 Ala. 175 (1882). New England T. Co. v. Abbott, 162 Mass. 148; 38 N. E. 432 (1894). § 10 (1); contra, Phippen v. Stickney, 3 Met. (Mass.) 384 (1841). › Clarke v. Westrope, 18 C. B. 765; 25 L. J. C. P. 287 (1856); Stose v. Heissler, 120 Ill. 433, 443, 444 (1887). • Sale of Goods Act, § 9 (2); Uniform Sales Act, Mass. L. 1908, ch. 237, § 10 (2); cf. Humaston v. Am. Tel. Co., 20 Wall. 20 (1873). Rev. Civ. Code of La., Art. 2465, provides that "The price, however, may be left to the arbitration of a third person; but if such person cannot, or be unwilling to make the estimation, there exists no sale." See Chevemont v. Fulton, 19 La. 245 (1841), and Tiernan v. Martin, 2 Rob. (La.) 523 (1842). 10 Chap. v. § 2 (B). Clearly, it is not necessary that the total sum to be paid be computed, or that it be computable, at the time the contract is made. A valid present sale may be effected of a drove of hogs, at a fixed price per pound, dressed weight,' and a valid contract may be made to sell all the merchantable timber of specified dimensions on a described piece of land, at a fixed price per thousand feet,2 though the computation of the total sum payable must be made in the future, when the hogs have been dressed, or the lumber has been cut. But the terms of the transaction must be sufficiently definite to give rise to a true contract between the parties, or it cannot be treated as a sale or contract to sell. Hence, if a debtor puts goods into the hands of his creditor, upon the understanding that when the parties agree upon a price, the creditor shall cancel his claim and pay the surplus, if any, to the debtor, the transaction is not a sale; and the goods remain the property of the debtor.1 5 57. Reasonable Price. Reasonable price is generally the market price. Such is not the case, however, if the latter is abnormal, as in case of a speculative corner, or of a trust combination; nor if there is no market at the place of de1 Cunningham v. Ashbrook, 20 Mo. 553 (1855); Burdick's Cases on Sales, 1. 6 2 Summitt Lumber Co. v. Sheppard,- -Ark.; 143 S. W. 100 (1912). Emanuel v. Jordan, 167 Ala. 176; 52 So. 310 (1910). A bill of sale of "two bales of cotton, 500 pounds each, now growing on my land," is void for uncertainty, in not identifying the bales sold: Jules Levy & Bro. v. A. Mantz & Co., 16 Cal. App. 666; 117 Pac. 936 (1911); Price v. Weisner, 83 Kan. 343; 111 Pac. 439 (1910); indefiniteness was in quantity and quality of goods: Price v. Stipek, 39 Mont. 426; 104 Pac. 195 (1909), indefinite description of goods. 4 Wittkowsky v. Wasson, 71 N. C. 451 (1874); Burdick's Cases on Sales, 654. 6 Kountz v. Kirkpatrick, 72 Pa. St. 376 (1872). • Lovejoy v. Michels, 88 Mich. 15, 23, 24; 49 N. W. 901; 45 A. L. J. 8 (1891). A price fixed by a trust combination is unlawfully fixed, and "the fact that they, the manufacturers, deemed the price fixed to be reasonable, does not purge it of its unlawful character. Independently of its" unlawful character, "a price so fixed cannot be regarded as any better evidence of value than that fixed by any vendor upon his own wares. Α price so fixed is not to be entitled to rank as a market price. It is not a market price within the contemplation of the law. The market price of an article manufactured by a number of different persons is a price fixed |