CHAPTER XVII.

OF PARTICULAR CONTRACTS.

§ 210. Contracts of sale and exchange.-Having considered the nature of contracts in general, and how and by whom they may be made, we proceed to inquire into the nature of particular contracts, and first of contracts of sale and exchange. Kent says: "A sale is a contract for the transfer of property from one person to another for a valuable consideration. Three things are requisite for its validity: the thing sold, which is the object of the contract, the price, and the consent of the contracting parties." By the Roman law things sold and delivered did not become the property of the buyer until he had paid the seller the price or satisfied him in some way or other, as by procuring some one to be security or by giving a pledge. But if the seller accepted the credit of the buyer the thing then immediately became the property of the buyer. And this is practically the law now in all civilized countries.

§ 211. The thing sold must exist. A contract of sale of a dead horse, which the parties think is living, is no sale. So of the sale of a house which had been destroyed, if the house and not the land on which it was built was the principal thing in the minds of the contracting parties. When goods are sold there is an implied warranty that the seller has title.

There is no warranty of title to real estate sold unless it is expressed in the conveyance. If one in due

form contracts for the sale of real estate, and refuses to convey, the court at the suit of the buyer will compel the seller to convey, if the buyer has performed or tendered performance of his part of the contract; or if the buyer elects he may sue the seller for damages. Except in rare cases, as where the contract is for the sale of stock in a corporation, courts will not compel the seller of personal property to transfer it to the buyer, leaving the buyer to his action for damages.

As to the quality of goods sold there is no warranty implied, except in cases of sales by sample there is a warranty that the goods sold will be of the same quality as the sample. There may be latent defects in the article unknown to both parties, and in such cases the buyer takes it at his own risk, but if the seller knew of such defects his concealment of them might amount to fraud, which would give the buyer a right to rescind the contract or sue for damages. Where defects of quality were apparent and each had equal means of information, there is no fraud, nor will mere statements of opinion as to value made by the seller amount to fraud.

If in a sale of several tracts of land or several horses at the same time title fails as to part, the buyer can not be held to the contract unless he waives his right to object. Of course, if there is a total failure of consideration the contract is void. If parties are negotiating by letter for a sale, the party making the offer may revoke it at any time before it

is accepted; once accepted, however, it can not be revoked.

§ 212. Transfer of title.-When does the title to the thing sold pass from the seller and vest in the buyer? When the terms of the sale are agreed upon and the seller has performed his part of the contract, from that instant the property is at the risk of the buyer. So, when the terms are agreed upon and the buyer pays or tenders the price, he is entitled to possession of the thing purchased. These general rules may be varied by the agreement of the parties, fixing a different method of payment, postponing the time of delivery, etc. If credit is given, the title passes to the buyer without payment, but if in such case the buyer becomes insolvent after the purchase and before the thing purchased comes to his possession, the seller may reclaim the goods, and defeat the buyer's title by asserting what is called the right of stoppage in transitu.

§ 213. Delivery.-As we have seen in what has been said concerning the statute of frauds, if the value of the chattel sold is fifty dollars or more, and it is not convenient to make prompt delivery, the contract of sale may be made binding by a memorandum or by the payment of part of the purchasemoney. And a delivery of a part of the goods sold and an acceptance of them by the buyer will bind the bargain. Even where earnest money is given, the balance of the purchase-money must be paid before delivery, unless credit is given. Where nothing is said as to the time for payment and delivery, they are both to be done at the same time. In all sales where anything remains to be done by the

buyer, such as the giving of a note or security for the purchase-money, the property does not vest in the buyer until that condition is performed, unless it is waived by the seller. Delivery to the agent of the buyer, or to a carrier for him, is a good delivery, and where no particular mode of carriage is named in the contract, the seller may send the goods by any of the customary modes of transportation. There may be a symbolical delivery of the things sold, as by giving the key of the warehouse which contains them to the buyer. Marking the goods sold with the name of the buyer, or setting them apart by his request, in a place designated by him, may constitute a good delivery. If no place for delivery is fixed by the contract, the rule is that they are to be delivered at the place where the contract is made, or where the goods sold are kept for sale. A note payable in specific articles, as in wheat or any other commodity, must be presented for payment at the farm or place of business of the maker of the note. Secret sales of personal property, which is left in the possession of the seller, are not absolutely void, but the retaining of possession by the seller is a strong circumstance tending to show that the sale was a sham, especially where the seller is in debt and embarrassed at the time. The federal courts hold that a bill of sale is fraudulent as to third persons, unless possession is given to the buyer. The decisions of the state courts are not all in harmony with this rule.

§ 214. Interpretation of contracts.-Contracts are to be interpreted according to the manifest intention. of the parties, words being taken in their popular In construing a written contract, if the lan

sense.

guage is ambiguous, the whole instrument is to be considered with all the circumstances surrounding the parties at the time it was made. If the contract

is expressed in such vague and doubtful terms, that the intention of the parties can not be ascertained from reading it, it is void.

§ 215. Contracts of bailment.-Bailment is the delivery of one's personal property to another for a temporary purpose, to be returned to the owner when the purpose is fulfilled. Some writers give five kinds. of bailment, but Story's classification is simpler. He gives three: (1) Bailment for the benefit of the bailor. (2) For the benefit of the bailee. (3) For the benefit of both. The degree of care to be exercised by the bailor depends upon the character of the bailment and the character of the article bailed. A mere borrower of another's property, who is to make no return for the use of it and is a bailee for his own benefit, is held to the exercise of the highest degree of care, or extreme care. One who hires a horse from another is a bailee for the benefit of both parties, and is not required to exercise so high degree of care as a bailee for his own benefit, but the care must be such as a prudent person would exercise with reference to his own property, or what is called ordinary care. Where property is left by the owner with another for safe keeping, without paying or agreeing to pay therefor, it is a bailment for the exclusive benefit of the bailor, and only a slight degree of care is required of the bailee. Of course, one is not bound to become a gratuitous bailee, and a promise to become such is not binding, but if goods are received by a gratuitous bailee he must care for them according to his