crops when harvested, or trees when they have been cut, are personal property or goods, and are readily subject to a contract to sell, perhaps to a sale. Fixtures in a house, or even buildings to be removed and delivered to the buyer, or removed by him, are also personal property.

Price. For a sale the price commonly is in money, and in some States this is essential; in others it may be in any personal property; the Uniform Sales Act says "in any personal property." The discharge of an existing indebtedness is sufficient. The price need not be directly stipulated; if it is capable of determination it is sufficient. This determination may be dependent upon some future event, as on the verdict of a jury, or on the valuation of a third person. A custom in general use or well maintained between the parties may, for instance, establish the market price as the sale price; or the custom between them may imply a reasonable price, which in many cases will resolve itself into the market price. If the price be finally determinable and certain, it suffices.

STATUTE OF FRAUDS

Statute of Frauds. One section of the English Statute of Frauds provides that no contract for the sale of any goods, wares, or merchandise for the price of £10 or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by said contract, or their agents thereunto lawfully authorized."

Acts in substantial accord have been passed by all or nearly all of the States, but instead of £10, various sums have been specified: $40, $50, $100, and even $2500 are actual figures. Apparently the view has prevailed in some States, that under modern conditions, business is better served by fixing a higher limit than $50, and $500 is now not uncommon as the price fixed.

Not Enforceable. The Uniform Sales Act uses the words "shall not be enforceable"; the sale or contract to sell is thus not illegal; it doubtless may be morally binding; the courts, however, in view of this statute, cannot give time to consider it.

Several Articles. Where several articles are bought at one time, is the transaction one sale or several sales? The answer often determines whether the price is large enough so that the Statute of Frauds applies. Where the sale is per unit, whether bushels of wheat, or a consignment of shovels, or wheelbarrows, or wagons, the case seems clear; with a bill of goods of various sorts ordered at one time and to be delivered together, it seems less

clear; but the nature of the transaction, the business custom between the parties, or the intent, may often readily indicate a single sale or contract to sell. Where a man ordered goods in part for his home, part for his farm, part for his place of mercantile business, the sales would probably be held to be separate.

Form of Memorandum. As to the memorandum in writing to bind the person charged, a letter, receipt, invoice, statement of account, entry in books, or memorandum of almost any kind will suffice. It must be sufficiently certain to indicate the transaction, including parties and the price, if any, agreed upon. It must be signed in some way, by initials, mark, code sign, rubber stamp, sometimes by print. The signature may be that of principal or agent, and in auction sales the auctioneer is recognized as the agent of both parties.

Part Performance. Part payment, or both receipt and acceptance of part of the goods, make a writing unnecessary. Receipt and acceptance are by no means synonymous. Following a transaction, if goods are delivered at a specified place or to a designated person, ordinarily the goods are delivered by the seller and received by the buyer. The receipt of a bill of lading or other document of title may serve the purpose of receipt of the goods just as the delivery of the deed of real property serves as delivery of the property. A common carrier may be and often is the agent of the buyer to receive goods, but he has no power to accept.

Acceptance. Acceptance of the goods is required, not merely of the offer; and this may occur before, after, or in connection with the receipt. Goods may be accepted while in the hands of the seller at the time of bargaining, and receipt be a further requisite; inspection may be necessary or allowable, and approval may thus come later than receipt; on the other hand, the whole transaction may be concluded at the time of negotiation, and removal by the buyer be the only duty to be performed. Some definite act of approval is often necessary, and may be sufficient; any dealing with the goods, as re-selling, implies acceptance.

Both receipt and acceptance are questions of fact for the jury to determine and the burden of proof of acceptance is on the seller.

DUTIES OF SELLER

Title and Possession. It is the duty of the seller, ordinarily, to confer title and give possession, unencumbered title and quiet possession; but not when there was an intent otherwise, perhaps by express exemption; and not in the case of administrators, executors, and trustees who are not expected to warrant title. There are sometimes conditions which go to the whole consideration, the essential terms of the contract, and where

non-fulfilment brings liability on neither party. An example is where goods are to arrive in a certain vessel which does not arrive; or when appraisal or approval is to be made by a designated party who refuses or neglects to act; or perhaps where goods are to be satisfactory to buyer. In the last case some courts uphold such a provision, others not.

Specific Article Furnished. When there is a sale of a specific article, this must be furnished; but where each has opportunity to see and judge, delivery and title to a specific thing agreed to is enough, although it was not the article the buyer thought it was.

Ordinarily, the remedy for a breach of contract on the part of the seller is a suit at Law for damages; a suit in Equity will be allowable only when a specific article may properly be held essential, and where money damages are inadequate.

Specific Characteristics. When there is an agreement to furnish an article with specified characteristics, that must be furnished, and this applies to contracts to sell as well as to sales. A sale of goods with specified characteristics, or description "with all its faults" is not fulfilled unless those characteristics are present, but is fulfilled if they are present, although the goods are imperfect in some way; defects of quality are "faults," those of design bring liability upon the seller.

When the sale is by description and sample, the purpose may be to fix quality, or design and fitness; the determination of fact as to which was the purpose may often be difficult. Explicit understanding in advance will prevent controversies.

Suitable for Purpose. When an article is to be suitable for a given purpose, the essential feature may be implied, and not in all cases expressly stated; the seller must, however, in some way know the requirement and purpose. In buying, reliance is often placed upon the skill and judgment of the seller, especially when there is no opportunity for preliminary inspection. The skill and judgment of a manufacturer may be relied upon, however, only for defects which might have been detected; for latent defects, the manufacturer or dealer generally is not responsible. When a buyer specifies a particular article under its trade name, there is no engagement as to its fitness for some special purpose; nor is there when the buyer specifies materials and methods.

The goods must also be in salable and merchantable condition, at least for shipment and perhaps when delivered. Provisions must be fit to eat as food, and statutes or ordinances often regulate this.

Quantity. Quantity may be of the essence of a sale, and a less amount rejected; a larger amount also, except that a moderate excess to secure compliance may be reasonable if no extra charge is made; the intent controls. When "about" qualifies quantity, a reasonable variation only is

allowable. Partial delivery under an entire contract does not satisfy the seller's obligation.

When a specific lot is sold, estimated in quantity, the lot is the essence, the quantity subordinate. A cargo of any specified vessel is a full cargo; without specification of size or quantity, the full cargo of a vessel engaged in that particular trade. It is wise in such transactions to specify in some way the amount required, approximately at least, for courts commonly construe such a sale or contract to comprise the entire cargo.

Goods sold must not be mingled with other goods to the buyer's disadvantage, unless according to custom or usage between the same seller and buyer. Inspection may sometimes require use; it must be reasonable use in the custom of the trade. Here clearly is an example where receipt may not be equivalent to acceptance. The agreement may, or may not, require acquisition of title before inspection; if title be acquired, the remedy after inspection will be a claim for damages.

Delivery of Possession. The duty of the seller to give possession, whether express or implied, is not equivalent to agreement to send. How the seller gives possession depends on circumstances and custom. The place of giving possession is often the seller's place of business, store, factory, farm, or mine; sometimes the place will be expressly agreed upon; sometimes the custom of the trade controls. Where there is transfer of possession without change of location, sometimes a vendor's lien attaches; sometimes the seller acts as bailee, perhaps being paid for storage.

In some cases ordinary delivery is impossible, as with logs in a boom. In this or other such cases, putting goods in the control of the buyer suffices. A cargo is delivered by its bill of lading; a key to a storehouse is delivered to buyer; with goods in a public place where locality is not an element of possession, any act of delivery satisfies. In the case of bulky or ponderous goods, where the seller leaves the goods to be removed by the buyer, there is delivery and receipt.

The time of delivery must be reasonable both as to date and hour and may be expressly fixed; when specified, it is not a collateral agreement, but essential.

Future Payment and Delivery. A sale may be made where both future payment and future delivery are agreed upon; frequently delivery depends upon, and at once follows payment. The time of payment may be specified and is then regarded in the United States as an essential term; this is the prevailing rule. It is often arranged that payment and delivery shall be coincident.

Sometimes delivery is by instalments; in such case failure to deliver the first instalment constitutes a breach and gives the right to avoid the contract; a later breach gives the right to repudiate the unperformed part;

but the rule as to this varies as in many other matters touching sales; a failure to pay promptly for an instalment may sometimes be explained.

Delivery to Carrier. Where the seller agrees to deliver goods, putting them in the hands of a carrier does not effect change of possession; but when the agreement is to deliver to a carrier, the latter is then the buyer's agent to receive the goods and delivery to the carrier is sufficient. If a specific carrier is designated, delivery must be to him. In the case of delivery F.O.B. the buyer is given the chance to specify means of transportation. Goods must be correctly addressed, and properly prepared for transportation, the method often being fixed by custom; the seller must comply with the carrier's regulations in the interest of the buyer. In some States, the seller must notify the buyer of readiness for shipment to give opportunity to insure; in some States, the custom between dealers controls. Delivery to a warehouseman follows the same rule as with carriers.

Title Acquired by Buyer. The buyer acquires such title as the seller has, but nothing more. Except by action of law, title can pass only by consent of the true owner unless the latter has conferred some apparent right on the seller. An innocent third party who buys from the original buyer in good faith for value, will be protected against an original seller who neglected to enforce his rights against the original buyer. A creditor receiving goods in payment for a debt, however, has often been held not to be a purchaser for value, but the rule as to this varies; the same is true of goods held as collateral. A buyer has a duty to exercise some diligence to inquire into the title of the seller; fault or neglect on his part leaves him subject to loss. Simple possession without apparent authority is not enough to give the seller the right to sell.

Notice by Seller. In the case of "conditional sales," where the original seller retains complete or partial title to an article sold to a vendee, as we may call him, the laws of many States place a burden upon the seller to provide suitable notice to any new buyer. The new buyer, in this case, may acquire all of the original seller's title if he performs all of the conditions before any default by the vendee.

The notice required of the seller may be by recording the contract of conditional sale, or by filing a copy in a specified office; and sometimes a witness, sometimes an acknowledgment, is required before the contract will be recorded or filed. The requirements are so conflicting in the various States that the advice of a competent attorney conversant with local laws and customs is substantially a necessity where the interests involved are important. The proprietor of a patented trench-digging machine sells to a contractor of moderate financial ability, expecting payments from the profits of the contract. When the contract is finished the