2. CONTRACT TO SELL. A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a price, which the buyer pays or agrees to pay.2

3. GOODS. Goods include all chattels personal other than things in action and money.

4. PROPERTY. Property means the general property in goods, and not merely a special property.

Sale.

At common law the transfer of personal property, at least of all personal property that is included under the term "goods,' "unlike the transfer of real property, is effected by the mere agreement, verbal or written, of the parties. If the present transfer of the property in specific goods for a price be agreed upon, the property in them passes from seller to buyer, without delivery, by their mere mutual assent. The agreement by which the transfer is thus effected is called a "sale," or a "bargain and sale." The bargain struck, the transfer results by operation of law. The term "sale" is often applied, indeed, to the transfer itself, and a sale is sometimes defined as the transfer of the property for a price in money. The proposed Sales Act defines a sale of goods as "an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price," and this use of the term seems preferable.

Contract to Sell-Distinguished from Sale.

A contract whereby the. seller agrees to transfer the property in goods to the buyer, for a price, at a future time or on

Comm. (12th Ed.) 468. "A transfer of the absolute or general property in a thing for a price in money." Benj. Sales (7th Am. Ed.) § 1. "Sale is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer." Indian Contract Act 1872, § 77. "A sale of personal property is the transfer, in pursuance of a valid agreement, from one party, called the seller, to another, called the buyer, of the general or absolute title to a specific chattel, for a price, or a consideration estimated, in money." Mechem, Sales, § 1. See Blackb. Sales, Introduction; Williamson v. Berry, 8 How. (U. S.) 544, 12 L. Ed. 1170.

2 See Sales Act, § 1 (1).

• Post, p. 4.

4 Post, p. 121.

See note 1, supra.

Sales Act, § 1 (2).

the performance of a condition, is a contract to sell. The term "contract of sale" is often used to include both sales and contracts to sell; and a sale is sometimes described as an "executed contract of sale," or an "executed sale," and a contract to sell as an "executory contract of sale," or an "executory sale."

The distinction between sales and contracts to sell is fundamental. There cannot be a sale unless the goods are "specific" —that is, unless the goods are identified and agreed upon at the time the sale is made; whereas, there can be a contract to sell, although the goods are not ascertained, and are not yet in existence or acquired by the seller. Again, a contract to sell is a contract pure and simple, while a sale is in the nature of a conveyance. "By an agreement to sell," says Judge Chalmers,10 "a jus in personam is created; by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default, the seller may sue for the contract price, but where an agreement to buy is broken, the seller's remedy is an action for unliquidated damages.11 If an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes. They may be taken in execution for his debts, and, if he becomes bankrupt, they pass to his trustee. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods themselves, such as the actions for conversion and detinue.12 In many cases, too, he can follow the goods into the hands of third parties. Again, if there be an agreement for sale, and the goods are destroyed, the loss, as a rule, falls on the seller; while, if there has been a sale, the loss, as a rule, falls on the buyer, though the goods have never come into his possession." 1o

7 Sale of Goods Act. § 1.

8 Post, p. 147. "Specific goods," see Sales Act, § 76 (1). Post, p. 45 et seq.

10 Chalmers, Sale of Goods Act (6th Ed.) p. 7.

11 Post, p. 344.

12 Post, p. 364.

18 Post, p. 141.

Goods.

Broadly speaking, anything of value may be the subject of sale. "It is not necessary," said Story, "that the subject of sale should have a physical and corporeal existence and be susceptible of manual delivery; for, provided it have actual value, however intangible it may be, it may nevertheless be sold." 14 Thus a copyright,15 or the right to copyright a work,16 or an invention before issue of letters patent,17 may be sold. And in a broad sense even a chose in action may be sold. Nevertheless the subject-matter of sale, using the word in a narrower sense, is "goods," a term which does not include all kinds of personal property.

The law of Sales relates peculiarly to the transfer of the property in goods, a term which applies to all tangible movable property except money,18 and does not include choses in action. It is true that in this country it is generally held that negotiable instruments, as well as shares of stock and other choses in action, "which are the subject of common sale and barter and which have a visible and palpable form," are comprehended within the term "goods, wares, and merchandises,” as used in the statute of frauds, and that by some courts it is even held that other choses in action are comprehended in these words; 1o but the assignment of things in action is governed by different rules than those that govern the transfer of the property in chattels personal which are susceptible of delivery. Negotiable instruments, indeed, stand upon a somewhat different footing from other choses in action, for they are susceptible of delivery; but the legal title to such instruments is transferred, not by sale in its narrower sense, but by negotiation.20 Things attached to the land, again, as a rule, form part of the realty, and are not included in the term "goods," though, when severed from the land, they become goods. Thus a contract to sell

14 Story Sales (4th Ed.) § 187.

15 Black v. Henry G. Allen Co. (C. C.) 42 Fed. 618, 9 L. R. A. 433. 16 Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547. 17 Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459; Dalzell v. Watch-Case Mfg. Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749. 18 See Chalmers, Sale of Goods Act (6th Ed.) p. 124. As to money, see post, p. 72.

19 Post, p. 73.

20 Norton, Bills & Notes (3d Ed.) 200.

standing trees, or the materials in a building upon the land, if the contract contemplates a present sale before severance, is generally held to be a contract for the sale of an interest in land; although, if it contemplates a severance before sale, it is a contract to sell the goods.21 Certain products of the soil, indeed, termed "fructus industriales," or "emblements," which are the product of annual labor, such as wheat and potatoes, are chattels, and are, perhaps, to be included in goods. 22 The cases involving the determination of the character of things attached to the soil have usually arisen under the statute of frauds, where it becomes material to determine whether a contract is for the sale of "goods, wares, and merchandises," or an interest in land, and different views have been taken by different courts. These questions will be discussed later.23

The proposed American Sales Act, following the English Sale of Goods Act, declares that "goods include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." 24 This definition would settle some vexed questions, and make some changes in the law in some jurisdictions.25

Property.

The essence of a sale is the transfer of the property in goods from seller to buyer for a price.28 The transfer must be of the general property or ownership, as distinguished from a special property; 27 for the general property may be in one person, and a special property in another. Thus, in the case of a pledge, the pledgee has only a special property, and the general property remains in the pledgor, who can transfer the general property to a third person, subject to the special property in the

21 Post, p. 74 et seq.

22 Post, p. 77.

25 Post, p. 76, note 55.

28 Post, p. 72 et seq.
24 Section 76 (1).

26 Chalmers, Sale of Goods Act (6th Ed.) p. 125.

27 Sales Act, § 76 (1). As to the distinction between "the" property (that is, the general property) and "a" property (that is, a special property), see Burdick v. Sewell, 13 Q. B. Div. 159, at page 175, and 10 App. Cas. 74, at page 93.

28

pledgee. Again, the property must be distinguished from the right to possession, for the right of property may be in one person and the right to possession in another, as where upon a sale the property in the goods passes to the buyer, but the seller retains a lien for the price, entitling him to retain possession of the goods until the price is paid."*

SALE DISTINGUISHED FROM OTHER TRANSACTIONS.

5. The elements which distinguish a sale from other transfers are (1) that the transfer is of the general property, and (2) that it is for a price. If, in a transfer, either element is lacking, the transaction is not a sale.

Where General Property is Not Transferred-Bailment.

A bailment is "a delivery of some chattel by one party to another, to be held according to the special purpose of the delivery, and to be returned or delivered over when the special purpose is accomplished." 30 In a bailment, at most, only a special property passes to the bailee, who receives possession for a special purpose, and is bound to return the goods,31 or else, as in the case of a consignment of goods to a factor or commission merchant for sale, to dispose of the goods according to the instructions of the consignor and upon sale to account for the proceeds.32 In most cases the test of bailment is whether or not it is the intention of the parties that the thing received shall be returned. If the identical thing is to be returned, although in altered form, as in the case of logs to be made into boards, leather into shoes, or wheat into flour, the property is not transferred, and the transaction is a bailment; 33 but if the

28 Post, p. 9.

29 Post, p. 122 et seq.

30 Schouler, Bailm. (2d Ed.) § 2. See Hale, Bailm. 1-9. 81 See cases cited notes 33, 34, infra.

82 Cf. Ruthrauff v. Hagenbuc, 58 Pa. 103.

33 Arnott v. Railway Co., 19 Kan. 95 (material added by manufacturer): Irons v. Kentner, 51 Iowa, 88, 50 N. W. 73, 33 Am. Rep. 119; Gleason v. Beers, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757; Union Stockyards & Transit Co. v. Cattle Co., 59 Fed. 49, 7 C. C. A. 660; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848.

Where A. delivered leather to B. to be made into boots, which B. was to consign to A., who was to sell them on a commission of 5 per