in others, the risk is primarily to be considered and a contract to sell may be more to the buyer's advantage.

The terms "bargain and sale" and "contract for future sale" are sometimes used instead of "sale" and "contract for sale."

Labor and Materials. It is sometimes difficult to distinguish between contracts to sell or perhaps from sales on the one hand, and contracts for labor and materials on the other. The rule or standard by which to distinguish between them differs in different States. In this connection, immediate delivery was at one time considered essential for a sale but is no longer insisted on. One rule provides that it is not a sale or a contract to sell if the use of labor in producing is a part of the consideration; another insists that where material to be worked upon is the seller's, he is working for himself and not for the buyer, and that it is a contract to sell or a sale; another takes the view that where the material is in form requiring work before delivery, it is a contract for labor and materials; another test rests upon the question whether the labor is the essential ingredient; still another which has found favor in several jurisdictions, looks to see whether the article ordered is such as the seller produces for the market in the ordinary course of business, or whether he has taken a special order for it. To distinguish correctly, one must know the law of the State in which the transaction occurs, and much of this is Common Law to be hunted out from the decisions of the courts. No general rule for guidance can be laid down here, however desirable it may seem. An important feature involved is that the Statute of Frauds has no application in the case of labor and materials, while it does apply to contracts to sell.

Basis is Contract. Whether a transaction is a sale, a contract to sell, or a contract for labor and materials, the basis is that of contract. A sale is sometimes called an "executed" contract, but valid objection to this is made that in case of a sale there are often things yet to be done, such as delivery by the seller or payment by the buyer.

At the outset four important questions arise: first, has there been any contract? second, if so, was there a sale? third, was there merely a contract to sell? fourth, was the contract for labor and materials?

Contract Essentials. If there was no contract, the matter ends there. It should be remembered that for a contract to exist, the four essentials are necessary; mutual assent, competent parties, consideration, definite and lawful subject matter. It should further be borne in mind that the Statute of Frauds requires that certain contracts shall be in writing, without which they are unenforceable and might as well not exist.

Involuntary Sale. While a sale, as a contract, requires mutual assent to its terms, what has been called an involuntary sale sometimes occurs where a court grants money damages for goods taken away from a person

in some way (the goods not being returned). Here an agreement to pay is apparently implied; the doctrine differs little if any from that of implied contract referred to in a previous chapter.

Important Features. Many interesting points are involved in the law of sales. Among these are possession, title, delivery, receipt, and acceptance; the rights, duties, and remedies of the parties and of third persons; and the risk which is a matter of importance to be considered.

Sale or Contract to Sell. In general, the seller passes, or engages to pass, the general property in a thing and to deliver possession for a price paid. Payment and giving of possession may take place at the same time or at different times. Whether the transaction in a given case is a sale or merely a contract to sell, is not always easy to determine.

When two persons negotiate and agree and the price is paid, delivery is made, and receipt and acceptance are accomplished, the case is clear; a sale is effected. When the price is not paid, and actual possession is not at once secured, the case is less simple; where the terms are clear, no difficulty results; but where inferences need to be made as to time of performance or otherwise, even judges have not always been sound in their opinions. A contract for future delivery may sometimes be a sale rather than a contract to sell; the law looks beyond the mere language to distinguish between a present sale and a contract for future sale; the intent, however determined, controls. The courts of some States, however, refuse to recognize a present sale when delivery and payment are to take place in future.

Ordinary Rule. The rule ordinarily is that a sale is confined to ascertained, existing goods, the property of the seller, title to which may pass at once; but for goods not in existence, or to be ascertained, or to be acquired or manufactured by the seller, the transaction commonly is a contract to sell. Natural products or expected increase, as offspring of animals, future crops of land, wages to be earned under an existing contract, or a mortgage resulting from an existing contract, however, may be the subject of a present sale; the title is potential, ripening into actual on the occurrence of the contemplated result. It is a sale to the extent that a later sale to a third party will be set aside.

Specific Goods. An agreement for the sale of specific goods is prima facie a sale, vesting title in the buyer and the right to the price in the seller, although future delivery is provided for as to time or place. When, however, the seller engages to do something further to put the goods into deliverable state, the presumption is that passing of title is to be postponed; in this case notice to the buyer of readiness for delivery seems to be required in some States and not in others, and a specific agreement as to this seems desirable at the time when the transaction is entered upon.

Immediate Delivery. On the other hand, there may be only a contract

to sell (rather than a sale) where goods are subject to immediate delivery; the question involved is whether title passes before delivery. The intent should in some way be made clear; and the opportunity for misunderstanding as to an oral agreement makes it desirable that there should be some writing to make clear what is intended; the interchange of letters in general business procedure serves not only to constitute a valid contract, but also to clearly define its terms; for instance, whether a sale or a contract to sell is intended.

Ascertained Goods. For a sale to occur, the goods must not only exist, but must be specific or ascertained, or definitely ascertainable. An agreement to sell and to buy a cow from a herd is not sufficient; some means must be provided to determine which cow; the cow "which the buyer shall select," however, is ascertainable.

Weighing, Measuring, Testing. Where weighing, or measuring, or testing is necessary to determine the price, or to identify or make certain the goods, the reasonable rule appears to be that there is no present sale and title does not pass until this is done and notice is given to the buyer. The seller then is impelled to prompt action in order to transfer the risk. The rule, however, is variable in the different States; the Uniform Sales Act regards the transaction as a sale. Weighing, when necessary, is sufficient even though computation may be further required.

In some States, if the goods are destroyed by fire or otherwise before weighing, the seller bears the loss; there has been no price fixed. In other States, the more general rule prevails that, where title has passed except for measuring, the buyer bears the loss for an amount to be determined as nearly as possible by other means.

Designated Quantity. When an agreement is made to give and to take a designated quantity from a mass of uniform kind and quality, in the United States with the exception of a few States, there is a sale; in England, not. The Uniform Sales Act regards it as a sale. This appears to be good law; the buyer surely gets what he wanted and agreed to take; no selection or discretion could bring about a different result. In the case of grain elevators, it is the accepted custom that an owner deposits a certain amount of grain, is given a warehouseman's receipt which he sells, and the purchaser later receives the specified amount of grain although the entire contents of the elevator may have changed more than once during the interval. There has been a sale in this case.

Known Quality. Where goods ordered are not a specific article, they must nevertheless be such goods as the buyer ordered and as the seller agreed to deliver. There must, however, be mutual assent; there must be an appropriation by the seller of the articles contracted for, and this must have the assent of the buyer. Often, in the course of business, this

assent may have been given prior to the appropriation; in ordering goods whose quality and character are known to the buyer, such assent is already given. Until the seller has set aside or appropriated the goods to the buyer, there is, however, no sale. A withdrawal of assent before appropriation will prevent a sale, although the seller may have a case against the buyer for breach of contract.

Future Goods. For unascertained or future goods, the buyer does not secure or assume title until after approval or acceptance, perhaps delivery. The goods must be goods agreed upon, in some cases a rather specific article; in orders for one of a specific class, the intent of the purchase must be covered. Where the order is filled according to agreement the buyer has already assented; this is implied.

Sale on Performance. A contract to sell may become a sale upon the performance of certain acts. A contract to sell on approval is not a present sale; but if goods not approved are held somewhat unduly, some States hold that the title has passed under implied approval. In some States, however, the contrary view prevails. Goods sent "for sale and return" are in this country at the buyer's risk, while the return, if made, must be within a reasonable time; otherwise it becomes a sale.

Cash Sales. In many States, in the case of "cash sales," the buyer is not entitled to possession without payment of cash, and where no time is agreed on for payment, delivery and payment are held to be concurrent acts, and the seller may refuse to deliver without payment, and unless payment is immediate the contract becomes void. The law is variable, however, in different States. In most States a contract for the sale of specific goods for cash is a present sale unless general custom or custom between the parties indicates otherwise.

Conditions. Both contracts to sell and sales may be made subject to conditions; these conditions may be expressly agreed upon, or they may be implied, as in other contracts. It is very common to make sales and to give possession even though title is retained by the seller until payment of the price is made; sometimes this condition is expressed, sometimes implied. The term "conditional sales" is commonly applied to such sales, special reference to which will be made later. Purchases C.O.D. in most jurisdictions appropriate goods to the contract, the title passing subject to payment on delivery. In the case of F.O.B. sales, title passes when delivery F.O.B. is accomplished. Where delivery at a particular place is specified, delivery at that place is perhaps the essence of the contract, and before delivery there is only a contract to sell.

Right of Disposal Reserved. With a contract to sell, the seller may reserve the right of disposal of the goods until conditions are fulfilled; for instance until the purchase price is paid, even if the goods have been

delivered. Sometimes, in this case, under unusual circumstances, the seller may impose a new condition; this, however, he does at his peril, at the peril of suit for breach of contract. Sometimes he ships goods under a bill of lading deliverable to himself, or agent, or order; sometimes, even when deliverable to buyer, the bill of lading is retained by seller until payment is made; or the bill of lading has a bill of exchange or draft for the price attached and is sent to an agent or a bank for presentation or collection. In this case the buyer does not secure title until he pays cash or accepts the bill or draft (whichever is required) unless in some way a contrary intent appears. It should be borne in mind that the point involved is the right to possession; although the buyer may be entitled to damages for breach of contract, yet, unless title has passed, a third party buying from the seller will acquire title and be secure in it in the absence of fraud on his part, while a third party who purchases from the buyer may be deprived of the goods.

Perished Goods. Where goods have perished before the agreement was made, there is no contract, no sale; where part only have perished or deteriorated before the agreement, the buyer is allowed to exercise an option, either to hold the contract void, or to pay for so much as is transferred at the agreed rate of price if divisible, or the full price if not divisible. In some cases where the full price would be out of the question, the buyer might dicker with the seller, and to better advantage before deciding to hold the agreement void. Any resulting agreement should constitute a new contract and be clear in its terms. Choses in Action. While the word "goods" is ordinarily interpreted as the equivalent of the English term "goods, wares, and merchandises," there is a tendency in the United States to extend it to other kinds of personal property, what lawyers call" choses in action " being sometimes specified; under this designation are included promissory notes, bills of exchange, debts, policies of insurance, and claims under which a suit might be brought. The rule common in many States is that accounts or other things not strictly deliverable are not subject to sale; there is divergence of law upon this point, however, in the different States. Money, particularly in forms specially in demand, will often be considered goods; ordinary, current forms of money, usually not. The Uniform Sales Act excludes money as "goods." In Virginia, in 1910, a case occurred in which it was held that where electricity was delivered into the wires of the consumer, title passed and a sale resulted.

Property Connected with Land. While the law of sales deals only with personal property, it should be borne in mind that some articles connected with real property are held to be personal property or goods. The products of a mine when later severed, ice when later formed on a pond,