fore, though the contract be in the form of a present sale, the property in the goods does not pass to the buyer unless the seller, after his acquisition of the goods, and before the rights of third persons, such as bona fide purchasers or attaching creditors, have intervened, does some act clearly showing his intention of giving effect to the original agreement and thereby appropriating them to the contract,224 or the buyer takes possession of them under authority to seize, which is equivalent to a delivery.225

Potential Existence.

If, however, the goods have a "potential existence," as defined in the first exception, the property in them passes upon their coming into actual existence. In this way a man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep at a future time, the milk that his cows may yield the coming month, but not the wool of any sheep, or the milk of any cows, that he may buy within the year. The doctrine, which was declared in the early case of Grantham v. Hawley, 220 is doubted by Judge Chalmers, who justly says that there is no rational distinction between one class of future goods and another.227 Grantham v. Hawley was followed in England in 1846,228 but the distinction was apparently discarded by the Sale of Goods Act.229 In this country the doc

224 Langton v. Higgins, 28 Law J. Exch. 252. Cf. Dexter v. Curtis, 91 Me. 505, 40 Atl. 549.

225 Congreve v. Evetts, 10 Exch. 298, 23 Law J. Exch. 273; Hope v. Hayley, 5 El. & Bl. 830, 25 Law J. Q. B. 155; Chidell v. Galsworthy, 6 C. B. (N. S.) 471; Allatt v. Carr, 27 Law J. Exch. 385; Rowan v. Manufacturing Co., 29 Conn. 283; Rowley v. Rice, 11 Metc. (Mass.) 333; Chase v. Denny, 130 Mass. 566; Cook v. Corthell, 11 R. I. 482, 23 Am. Rep. 518; Chapman v. Weimer, 4 Ohio St. 481; McCaffrey v. Woodin, 65 N. Y. 459, 22 Am. Rep. 644. See, also, cases cited in preceding note. Contra: Allen v. Goodnow, 71 Me. 420; Deering v. Cobb, 74 Me. 334, 43 Am. Rep. 596. As to the revocability of the license to seize: Chynoweth v. Tenney, 10 Wis. 397; McCaffrey v. Woodin, supra; Jones, Chat. Mortg. (3d Ed.) § 165 et seq.

226 Hob. 132. See, also, Robinson v. MacDonnell, 5 Maule & S. 228; 14 Vin. Abr. tit. "Grant," p. 50; Shep. Touch. "Grant," 241; Perk. §§ 65, 90. See, also, Foster's Case, 1 Leon. 42.

227 Chalm. Sale of Goods Act (6th Ed.) 20.

228 Petch V. Tutin, 15 Mees. & W. 110.

220 Section 5 (3). Sales Act, § 5 (3), follows the English act.

trine has been very generally recognized. Thus it has been held that a man may sell the crops to be sown on his land,23 or the future offspring of his animals,281 or cheese to be made from the milk of his cows.232 The cases as a rule are those involving chattel mortgages. Some cases confine the doctrine to the spontaneous product or increase of that which is already in existence, 234 and many courts refuse to apply it to crops not yet sown.

Rule in Equity.

235

In equity, which treats as done what ought to be done, an agreement for value purporting to mortgage personal property afterwards to be acquired, provided it is sufficiently described to be identified, gives the mortgagee a lien upon the property as soon as it is acquired.286 But it is only an equitable lien,

230 Senter v. Mitchell (C. C.) 16 Fed. 206; Dickey v. Waldo, 97 Mich. 255, 56 N. W. 608, 23 L. R. A. 449 (peaches to be grown on seller's trees); Hall v. Glass, 123 Cal. 500, 56 Pac. 336, 69 Am. St. Rep. 77.

231 Hull v. Hull, 48 Conn. 250, 40 Am. Rep. 165; McCarty v. Blevins, 5 Yerg. (Tenn.) 195, 26 Am. Dec. 262 (during gestation). Contra: Battle Creek Valley Bank v. Bank, 62 Neb. 825, 88 N. W. 145, 56 L. R. A. 124. And see Bates v. Smith, 83 Mich. 347, 47 N. W. 249.

232 Conderman v. Smith, 41 Barb. (N. Y.) 404; Van Hoozer v. Cory, 34 Barb. (N. Y.) 9.

233 The rule is affected in many states by the laws governing recording and delivery. Post, p. 137.

284 A valid mortgage cannot be given on bricks to be made from clay in the seller's land. T. B. Townsend Brick & C. Co. v. Allen, 62 Kan. 311, 62 Pac. 1008, 52 L. R. A. 323, 84 Am. St. Rep. 388; See, also, Rochester Distilling Co. v. Rasey, 142 N. Y. 570, 37 N. E. 632, 40 Am. St. Rep. C35.

235 Hutchinson v. Ford, 9 Bush (Ky.) 318, 15 Am. Rep. 711; Comstock v. Scales, 7 Wis. 159. Contra: Cole v. Kerr, 19 Neb. 553, 26 N. W. 598; Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389'; Merchants' & Mechanics' Sav. Bank v. Holdredge, 84 Wis. 601, 55 N. W. 108. See also T. B. Townsend Brick & Contracting Co. v. Allen, 62 Kan. 311, 62 Pac. 1008, 52 L. R. A. 323, 84 Am. St. Rep. 388.

236 Holroyd v. Marshall, 10 H. L. Cas. 191, 33 Law J. Ch. 193; Tailby v. Official Receiver, 13 App. Cas. 623; Collyer v. Isaacs, 19 Ch. Div. 342; Mitchell v. Winslow, 2 Story (U. S.) 630, Fed. Cas. No. 9,673; Pennock v. Coe, 23 How. (U. S.) 117, 16 L. Ed. 436; Beall v. White, 94 U. S. 382, 24 L. Ed. 173; Brett v. Carter, 2 Low. (U. S.)

and will not prevail against a purchaser for value without notice.237 For the same reasons it is generally assumed that in equity a contract for the sale of personal property afterwards to be acquired, if sufficiently identified, operates to give to the buyer an equitable lien or interest in it as soon as it is acquired.238 The cases cited generally relate to chattel mortgages, and their applicability to contracts of sale is doubtful.2 Wagering Contract-Sale of Chance.

239

It was once held that a contract for the sale of goods to be delivered at a future day, when the seller had not the goods, but intended to go into the market and buy them, was a mere wager on the price of the commodity, and was hence invalid.240 But this doctrine has been exploded.241 "The goods which

458, Fed. Cas. No. 1,844; Barnard v. Railroad Co., 4 Cliff. (U. S.) 351, Fed. Cas. No. 1.007; McCaffrey v. Woodin, 65 N. Y. 459, 22 Am. Rep. 644; Benjamin v. Railroad Co., 49 Barb. (N. Y.) 441; Philadelphia, W. & B. R. Co. v. Woelpper, 64 Pa. 366, 3 Am. Rep. 596; Smithurst v. Edmunds, 14 N. J. Eq. 408; Williams v. Winsor, 12 R. I. 9; Apperson v. Moore, 30 Ark. 56, 21 Am. Rep. 170; Sillers v. Lester, 48 Miss. 513; Ludlum v. Rothschild, 41 Minn. 218, 43 N. W. 137; Central Trust Co. v. Improvement Co., 169 N. Y. 314, 62 N. E. 387. In Massachusetts the rule appears to be the same in equity as at law. Moody v. Wright, 13 Metc. (Mass.) 17, 30, 46 Am. Dec. 706; Blanchard v. Cooke, 144 Mass. 225, 11 N. E. 83: Tatman v. Humphrey, 184 Mass. 361, 68 N. E. 844, 63 L. R. A. 738, 100 Am. St. Rep. 562. So, also, in Wisconsin, Hunter v. Bosworth, 43 Wis. 583; Merchants' & Mechanics' Sav. Bank v. Holdredge, 84 Wis. 601, 55 N. W. 108. Cf. Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577; Humphrey v. Tatman, 198 U. S. 91, 25 Sup. Ct. 567, 49 L. Ed. 956. See "Transfers of After-Acquired Property," by Samuel Williston, 19 Harv. Law Rep. 557; Williston, Cas. Sales, p. 23, note 1.

237 Joseph v. Lyons, 15 Q. B. Div. 280, 54 Law J. Q. B. 3; Hallas v. Robinson, 15 Q. B. Div. 288; Morrill v. Noyes, 56 Me. 458, 466, 96 Am. Dec. 486.

238 Benj. Sales, § 81. See Scammon v. Bowers, 1 Hask. (U. S.) 496, Fed. Cas. No. 12,431; Hamilton v. Bank, 3 Dill. (U. S.) 230, Fed. Cas. No. 5,987; Post v. Corbin, 5 Nat. Bankr. Rep. (U. S.) 11, Fed. Cas. No. 11,299.

239 19 Harv. Law Rep. 584-585.

240 Bryan v. Lewis, Ryan & M. 386.

241 Hibblewhite v. McMorine, 5 Mees. & W. 462; Mortimer v. MeCallan, 6 Mees. & W. 58; Ajello v. Worsley (1898) 1 Ch. 274; Appleman v. Fisher, 34 Md. 551; Stanton v. Small, 3 Sandf. (N. Y.) 230;

TIFF.SALES (2d Ed.)—4

form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract to sell." 242 Nor is a contract to sell goods invalid because the acquisition of the goods by the seller depends upon a contingency which may or may not happen,243 as in the case of goods to arrive by a certain ship. It is only in this sense that there can be the sale of a chance, known to the civil law as "venditio spei." "245 Thus it has been held that a sale of fish to be caught had no effect to pass the property in the fish when caught, but there seems no reason why a contract by a fisherman to sell all the fish he might catch on a particular voyage should not be good as an executory agreement.

244

MUTUAL ASSENT AND FORM OF CONTRACT.

14. The transfer of the property is effected by the mutual assent of the parties to the contract of sale.

15. At common law a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties.247

Clarke v. Foss, 7 Biss. (U. S.) 541, Fed. Cas. No. 2,852; Wamsley v. H. L. Horton & Co., 77 Hun (N. Y.) 317, 28 N. Y. Supp. 423; Fletcher v. Packing Co., 41 App. Div. 30, 58 N. Y. Supp. 612; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S. E. 485, 81 Am. St. Rep. 28; Northington-Munger-Pratt Co. v. Warehouse Co., 119 Ga. 851, 47 S. EL 200, 100 Am. St. Rep. 210; post, p. 218.

242 Sales Act, § 5 (1).

248 Taft v. Church, 162 Mass. 527, 39 N. E. 283. See Sales Act, § 5 (2).

244 Hale v. Rawson, 27 Law J. C. P. 189; Whitehead v. Root, 2 Metc. (Ky.) 584; post, p. 235.

245 Poth. Cont. de Vente, No. 61. See Buddle v. Green, 27 Law J. Exch. 33, 34, per Martin, B.; Hitchcock v. Giddings, 4 Price, 135, 140, per Richards, C. B.; Hanks v. Palling, 6 El. & Bl. 659, 669, 25 Law J. Q. B. 375, per Lord Campbell, C. J. Cf. Losecco v. Gregory, 108 La. 648, 32 South. 985.

246 Low v. Pew, 108 Mass. 347, 11 Am. Rep. 357.

247 Sales Act, § 3.

Mutual Assent.

If there be parties capable of contracting, and a thing in existence and owned by one of them, the property in the thing may be transferred whenever the parties mutually assent to the transfer. Neither delivery of the thing nor payment of the price is necessary to perfect the transfer.248 The parties may make whatever bargain they please. They may agree that the transfer shall take effect at once, or they may agree that it shall not take effect until after delivery or payment, or the happening of some other condition; and if they express their intentions clearly, the law will give effect to them.

The contract of sale, like other contracts, is founded on mutual assent. The principles of law which govern the formation of the contract are the same as those which govern the formation of contracts generally, and little need be said in regard to them. Thus an offer to buy or to sell, in order to ripen into a binding agreement, must be accepted, and the acceptance must be unconditional; 249 and until acceptance, but not after, the offer may be withdrawn.250

248 Benj. Sales, 3; post, p. 121.

249 Hutchison v. Bowker, 5 Mees. & W. 535; Hyde v. Wrench, 3 Beav. 334; Jordan v. Norton, 4 Mees. & W. 155; Felthouse v. Bindley, 11 C. B. (N. S.) 869, 31 Law J. C. P. 204; Minneapolis & St. L Ry. Co. v. Mill Co., 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376; Carr v. Duvall, 14 Pet. (U. S.) 77, 10 L. Ed. 361; Myers v. Smith, 48 Barb. (N. Y.) 614; Potts v. Whitehead, 23 N. J. Eq. 512; Hutcheson v. Blakeman, 3 Metc. (Ky.) 80; Smith v. Gowdy, 8 Allen (Mass.) 566; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37; Maclay v. Harvey, 90 III. 525, 32 Am. Rep. 35; Robinson v. Weller, 81 Ga. 704, 8 S. D. 447; Maynard v. Tabor, 53 Me. 511; McIntosh v. Brill, 20 U. C. C. P. 426. See Clark, Cont. (2d Ed.) 21-31.

250 Cooke v. Oxley, 3 Term R. 653; Routledge v. Grant, 4 Bing. 653; Paine v. Cave, 3 Term R. 148; Head v. Diggon, 3 Man. & R. 97; Smith v. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 145; Dickinson v. Dodds, 2 Ch. Div. 463; Byrne v. Van Tienhoven, 5 C. P. Div. 344; Stevenson v. McLean, 5 Q. B. Div. 346; Craig v. Harper, 3 Cush. (Mass.) 158; Boston & M. R. Co. v. Bartlett, Id. 224; Fisher v. Seltzer, 23 Pa. 308, 62 Am. Dec. 335; Johnston v. Fessler, 7 Watts (Pa.) 48, 32 Am. Dec. 738; Grotenkemper v. Achtermeyer, 11 Bush (Ky.) 222; Tucker v. Woods, 12 Johns (N. Y.) 190, 7 Am. Dec. 305; Faulkner v. Hebard, 26 Vt. 452; Falls v. Gaither, 9 Port. (Ala.) 605; Eskridge v. Glover, 5 Stew. & P. (Ala.) 264, 26 Am. Dec. 344; Larmon v. Jordan, 56 Ill. 204; Johnson v. Filkington, 39 Wis. 62;