purchaser acquired good title to the 6,000 bushels (13). In such case each party has the right of severing the tenancy in common by taking the proportion of the mass, which belongs to him.

§ 35. Destruction of goods: Sale. "Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void” (14).

In a sale of goods, obviously the existence of the goods is essential to the performance of the contract; and, under a simple doctrine of the law of contracts, where the performance of the contract has become impossible on account of the non-existence of the subject-matter of the contract, through no fault of either party, the contract is discharged (15). This may be put either upon the ground of impossibility of performance or that of mutual mistake. The seller is excused from delivery of the goods, owing to impossibility, through no fault of his; and the buyer is excused from paying the price, through failure of consideration. And both the buyer and seller are excused from performance, or liability for non-performance, on the ground of mutual mistake.

Where the goods are partly destroyed, it is impossible for the seller to fulfill his contract, and, if without his fault, he is excused on the ground of impossibility. The buyer has the option of accepting the goods that remain, upon paying the proportionate part of the price. The

same is true where the goods are inferior in quality to that supposed by the parties. These principles are expressed in the Sales Act, as follows: "Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale: (a) As avoided; or (b) As transferring the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible or to pay the agreed price for the goods in which the property passes if the sale was divisible” (16).

§ 36. Same: Contract to sell. Where, instead of a sale, there is a contract to sell, the same principles apply in case of a destruction or a partial destruction or deterioration of the goods. When it is not possible for the parties to perform the contract which they entered into, as entered into, they are excused. If goods contracted to be sold are totally or partially destroyed before they are transferred to the buyer, there is an unqualified rescission of the contract, and the purchaser may recover so much of the purchase price as has been paid (17).

"Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. Where there is a contract to sell specific goods, and sub

(16) Sales Act, sec. 7.

(17) Kelly v. Bliss, 54 Wis., 187; Curtis v. Hanney, 3 Esp., 82.

sequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, 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, the buyer may at his option treat the contract: (a) As avoided; or (b) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding upon the buyer to pay 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" (18).

§ 37. Definition and ascertainment of price. The prico is the consideration furnished by the buyer, paid or promised to be paid, for the goods. The term applies to money or money's worth. "The price may be payable in any personal property" (19). If the price be payable in goods, they must be taken at a money valuation. An exchange or barter is a sale, where the goods are taken at a certain money valuation, as eggs per dozen or poultry per pound.

"The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the by the course of dealing between the parties" (20).

The parties ordinarily agree upon the price at the time of entering into the contract, but they may agree

(18) Sales Act, sec. 8. (19) Sales Act, sec. 9. (20) See note 19.

upon almost any method of determining the price; such as, that it may be determined by a third person, or by the usual course of dealing between the parties or in the locality, or by the amount received by the buyer upon a resale, or with reference to other sales or reports of sales at a certain specified place and future time, or according to the market price at the time or on a certain specified day. Often the parties enter into the contract without specifying any price. This ordinarily happens in buying goods for immediate domestic use. In such case, the buyer must pay a reasonable price. "Where the price is not determined in accordance with the foregoing provisions" (quoted above) "the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case" (21). The question of what is a reasonable price, in case of disagreement, is, of course, to be determined by the jury. Generally the market price at the time and place of the sale governs.

§ 38. Sale at a valuation. "Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third person, and such third person, without fault of the seller or the buyer, cannot or does not fix the price or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor❞(22).

(21) See note 19.

(22) Sales Act, sec. 10.

The fixing of the price by the third person is a condition precedent to the liability of the buyer upon the contract. If any part of the goods have been delivered to and appropriated by the buyer, the liability is quasi-contractual, i. e. for the amount that he has been benefited. Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may maintain an action for damages against the party in fault, or may pursue whatever legal remedy is appropriate for redressing the injury which he has sustained.