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a “gift”. If there is something exchanged for it, but no monetary value is fixed upon the exchange, the transaction is called a “barter and exchange”.
So far as the privileges, powers and duties which constitute ownership are concerned it makes no difference whether the transfer was by way of gift, barter and exchange or sale. But whether the transaction is a sale or a gift does make a difference when the question is whether the transfer has taken place or not. And even in this respect there is no difference between a sale and an exchange. In the case of a gift it is held that no title passes until possession has been transferred, while in the case of either sale or exchange title may pass before transfer of possession-a point that is more fully discussed later.
The practical importance of the distinction between sale, gift and exchange arises whenever one of those transactions is attended, as a transaction, with certain consequences which do not follow from the others. Practically all cases involving a real difference and making the name important arise under statutes imposing a penalty upon certain “sales” which is not imposed expressly upon gifts and exchanges. Thus, a statute of Arkansas prohibited the “sale" of liquor to minors. A minor having become possessed of a quantity of whiskey which was not to his taste, induced a saloon-keeper to give him whiskey of a different quality in exchange for that which he already possessed. This saloon-keeper was then indicted for selling liquor to the minor contrary to the statute. The court discharged the defendant, on the mere statement of facts as admitted, because the transaction was not a “sale” but an “exchange”, which latter was not forbidden by the statute.16 Under another statute
16-Gillan v. State, 47 Ark. 555. The court was undoubtedly influenced in this decision by the fact that a statute relating to Indlans expressly forbade one to
"sell, exchange, give, barter or dispose of" liquor, while that relating to minors used the word “sell” only.
which forbade any one either to “sell” or to “give" liquor to a minor it was held that one was not guilty who furnished a minor whiskey in exchange for his promise to return a like quantity at a later date. The court said that the accused had neither “sold”, since there was no price in money, nor did he "give”, since he got something in exchange.
The fact that some money is given in exchange together with other things, does not make the transaction a sale if the exchange as a whole has no monetary value placed upon it. Thus, a slave dealer exchanged two slaves which he owned plus $100 in money for two other slaves. After the transaction had been carried out, one of the parties desired to evade its effect and alleged that it was void because the dealer had no license and a statute of the state declared that all sales, made under the circumstances, without a license should be void. The transaction was held valid, however, on the ground that it was not a “sale” even though part of the exchange was in actual money. The court laid down the proposition that actual money need not pass in order to constitute a sale, that in business life real money seldom does pass, but that whatever is given in exchange “must be treated as so much money” and its value must be estimated in relation to money, not merely in relation to the thing for which it is exchanged.18
As this court said, the consideration need not be in money, for the transaction to constitute a “sale”, if its value is estimated in terms of money. Neither need the estimate be in accordance with what others might value it. All that is necessary is that the parties treat it as though it were the equivalent of a specified amount of money. Thus in Brunsoold v. Medgorden 19 the plaintiff had sold land to defendant for a stated price of $9600. It was agreed that the plaintiff would accept in lieu of money a certain stock of groceries valued at their wholesale cost. As a matter of fact the groceries were actually worth only about 70% of their wholesale price. Although the agreement was thus an exchange of groceries for land, with a fictitious value set upon the groceries, the court nevertheless, by way of dictum, declared the transaction to be a “sale” rather than a "barter and exchange” 20
17-Coker v. State, 91 Ala. 92. This court expressly overrules the case of Com. v. Abrams, 150 Mass. 393,which had held precisely similar circumstances to constitute a "sale."
A “gift”, even though, by a hotel-keeper through the agency of a waiter and to one who expected to pay is not a "sale" within
a statute prohibiting sales, Com. v. Packard, 71 Mass. (5 Gray) 101; even though money be given back later as a bona fide return gift and not a mere colorable evasion, Finley V. State, Tex., 47 S. W. 1015; Acc. Wood v. Territory of Oregon, 1 Ore. 223.
18–Gunter v. Lecky, 30 Ala. 591.
For a transaction to constitute a sale it is not essential that the thought of transferring title have been in the minds of the parties, nor that the transfer of title have been the primary motive. It is enough to give the transaction the legal effects of a “sale" if it does in fact result in a transfer of ownership of the goods. 21
19-Iowa, 153 N. W. 163.
20-Picard v. McCormick, 11 Mich. 68. As a matter of recovery of “purchase price" or "damages"; Studebaker Corp. v. Gollmar, 150 N. W. 442, 159 Wis. 226.
21—The furnishing of food in a restaurant is a "sale", so that an action for breach of warranty can be maintained. Friend v. Childs Co., Mass., 120 N. E. 407; Barrington v. Hotel Astor, 171 N. Y. S. 840; Leahy v. Essex Co., 148 N. Y. S. 1063; Race v. Krum, 146 N. Y. S. 197, affd. 222 N. Y. 410.
Contra, Merrill v. Hodson, 88 Conn. 314; Valeri v. Pullman Co., 218 Fed. 519.
And so that statutes prohibiting "sales" of game, liquor, adulterated nilk, etc. apply. Com. v. Phoenix Co., 157 Ky. 180; Com.
v. Warren, 160 Mass. 533; People v. Clair, 221 N. Y. 108; Com. v. Miller, 131 Pa. 118; State v. Lotti, 72 Vt. 115.
Contracts to manufacture articles are held, in many jurisdictions, to be "sales" within the meaning of the Statute of Frauds.
Under the Statute, which requires certain contracts of "sale" to be in writing, the interpretation of the word is somewhat more liberal than is its interpretation under penal statutes. Purcell v. Miner, 4 Wall. (U. S.) 513; Sursa v. Cash, 171 Mo. Ap. 396; Moss v. Culver, 64 Pa. 414, 3 Am. Rep. 601; Welch V. Bigger, 24 Idaho 169. See the discussion under that heading.
Under the English "Profiteering Act", the furnishing of food by a 22—There are some rights which can be enforced against any person, and hence come within some definitions of a right in rem, but which so completely appertain to the individual in whose favor they run that they can not conceivably be transferred. Such, for instance, is the right of privacy and the right to a reputation-as distinct from business good will. While it may be said that these, although rights in rem, are incapable of transfer of ownership and therefore can not be the subject of a sale, it may also be said that they are not the subjects of ownership in a legal sense. The issue is, however, purely one of terminology; if such rights may be said to be "owned" they must be excepted from the statement of the text, which is in that case too broad in its unqualified form.
Subject Matter of Sales.-Anything can be sold which is capable of being owned in a legal sense. 22
The law permits the transfer of ownership of anything which it recognizes as being the object of property rights. It makes no difference therefore whether the subject of the sale is corporeal property, so tangible as a cow, for instance, or a mere incorporeal legal right, such as an invention whose exclusive use is secured by patent, or the good will of a business. A mere “privilege” of doing some particular thing may be transferred to another and the transaction will be called a "sale".23
restaurant keeper has been held to be a "sale", Rex v. Birmingham Profiteering Com., (1920) K. B. 57, 89 L. J. R. 57; so also the compounding of a prescription and transfer of the resultant product, Rex v. Wood Green Profiteering Com., (1920) K. B. 55, 89 L. J. R. 55.
23—In Hathaway v. Bennett, 10 N. Y. 108, plaintiff had "bought" from X the privilege which X had by agreement with Bennett of selling the latter's newspapers through a certain district. The suit was occasioned by Bennett's refusal to supply papers plaintiff. The contract held that Bennett might revoke the privilege at any time but that so long as it did exist it was capable of "sale" and its ownership had been transferred to plaintiff so
as to make him owner of it.
In Hoyt v. Holly, 39 Conn. 326, 12 Am. Rep. 390, plaintiff, a phy. sician had agreed with defendant that in return for payment by defendant he would introduce defendant to his patients and transfer to him the good will of so many as he could and would himself remove from practice. The issue was only whether such a contract was valid and enforcible and the court upheld it, calling it a "sale" of the good will.
The transfer of an interest in a partnership was called a "sale" in Van Brocklin v. Smeallie, 140 N. Y. 70, and declared to be effec. tive. Acc. Slidell v. McCoy's Exs. 15 La. 340. The right to receive a. part of rents collected by a receiver may be "sold” at judicial
-Choses in Action.-Some effort has been made, from time to time, to distinguish between the transfer of property which exists because of a right of legal action against all persons generally and that property which consists only of a right of legal action against some particular person or persons. The former are technically called property rights, or rights in rem, and the latter are called rights in personam. At one time the latter, that is, the right of action against a particular person, could not be transferred. It could be exercised only by the person in whom it had been originally created. That is to say, the possessor of the right could go through all the motions and follow the forms of transferring it to another but the courts would refuse to allow that other to exercise it. In legal effect, therefore, it was not transferred. By a progress of development which need not here be discussed, it has come to pass that at the present day such rights of action can be transferred 80 that they may be enforced by the transferee in the name of his transferor at least, and usually in his own name. But because of the fact that at one point in the development of the legal privilege of transferring them they could be enforced by the transferee only in the name of the transferor, and the transferee could not be said therefore to be "owner" of the right of action, one finds frequent intimation that such rights can not be “sold”. “Assignment” of the right was the proper term for the transfer. But since the privilege of transferring the right of action has come to the point where the transferee can exercise it in his own name he has acquired at least one of the rights of ownership and is generally called “owner”. Likewise, the transfer is indiscriminately called “assignment” or
” "sale". It is immaterial whether the transaction be
sale to satisfy a judgment against the owner of the right, Verplanck v. Verplanck, 29 N. Y. Sup. Ct. 104.