(JflrtifU ICam f^rlynnl Slihtatjj I?"""" Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018845218 THE LAW GOVERNING SALES OF GOODS AT COMMON LAW AND UNDER THE UNIFORM SALES ACT BY SAMUEL WILLISTON Weld Professor of Law in Harvard University NEW YORK BAKER, VOORHIS & CO, 1909 COPYBIQHT, 1909, Br SAMUEL WILLISTON J. H. LYON COMPANV PRINTERS AND BINDERS ALBANY, M, Y, PREFACE. If some years of study and teaching of the law of sales are not sufEcient excuse for venturing to invade with a new book a field already occupied by writers of such distinction as the authors of the leading English and American treatises on the law of sales, I may plead further a desire to explain and support the provisions of the Sales Act which I drafted at the instance and under the super- vision of the Commissioners for Uniform State Laws. These Com- missioners have been appointed by nearly all the States of the Union for the purpose of bringing about, so far as is desirable and possible, uniformity of law in the several States. They meet an- nually in conference, and thus far their chief accomplishment is the jSTegotiable Instruments Law which has now been enacted by more than two-thirds of the States. The original draft of an "Act to make Uniform the Law of Sales " was prejDared by me in 1902— 1903, at their instance. It was printed in the summer of 1903 and distributed, with a request for criticism, to teachers of the law of sales, writers, and other experts on the subject. Some criticisms were received and with the light of these criticisms, and my own further reflection, a revised draft was presented to the Commis- sioners in the summer of 1904. This draft was gone over section by section at this conference. Doubtful points and proposed changes in wording were carefully considered. A revised draft was again presented in 1905, and with slight changes once more in 1906. At the meeting of the conference at St. Paul in the summer of 1906, the draft was finally adopted by the Commis- sioners and recommended for passage. During the following winter it was enacted in Arizona, New Jersey and Connecticut, and a year later in Massachusetts, Ehode Island and Ohio. It seems reasonable to hope that other States may follow the example thus set. In order to explain the Act and perhaps furnish an aid to its uniform construction, I first planned to prepare a book giving the iv Peeface. Statute with brief annotations. I soon became satisfied, however, that any complete understanding and proper construction of the codification of a subject having so long a history as sales must be based on a thorough knowledge of the law prior to the codification, and also of any reasons for changing what had been previously established, or for preferring one side of the argument upon a con- troverted point. I have accordingly prepared a book which is not simply a commentary on the Sales Act, but is also a full treatise on sales under the Common Law. Where a comparison of the rules of the Civil Law seemed likely to be serviceable I have also ventured upon such comparison, though I have not attempted a full treatment of the whole subject of sales under the Civil Law. I have allowed myself considerable freedom in the statement of my oAvn views of the lav/ and the reasons for them, and have not hesitated to criticize decisions of the courts where they seemed opposed to principle or to the convenience of trade. I have tried, however, not to allow my own opinions to interfere with the exactness of my statement of the actual decisions, and I have made full annotations containing not simply citations of au- thorities but, also, wherever it seemed useful, quotations from the opinions of courts or summaries of the facts of the important cases, in order that the reader might have at hand the means of testing the correctness of my conclusions. In the preparation of the chap- ter devoted to " Delivery ^^jy^the Buyer and Ketention of Possession by the Seller," I have been assisted by Joseph H. Iglehart, Esq., of the Indiana Bar. SAMUEL WILLISTOK Cambeidge, February, 1909. TABLE OF CONTENTS. PART I. Formation of the Contract. CHAPTEE, I. Definitions and General Peinoiples. [References are to sections.] Terms defined In Sales Act 1 Explanation of definitions 2 Sales by deeds 3 Sales by operation of law 4 Mutual assent generally necessary 5 Sales and contracts to sell 6 Absolute and conditional contracts and sales 7 Conditions subsequent 8 Parties to a bargain 9 CHAPTEE, II. Capacity of Parties. Provision of Sales Act as to capacity 10 Infant's capacity, general rule 11 Voidable means valid until avoided 12 Infant's privilege is personal 13 Whether the privilege may be exercised against a subsequent purchaser in good faith 14 How disaffirmance may be made 15 When the privilege may be exercised 16 The whole transaction must be disaffirmed 17 Other consequences of disaffirmance 18 Restoration of consideration 19 Ratification 20 liability for necessaries 21 What are necessaries ■ 22 V vi Table of Contents. [E«ferenoes are to sections.] What are not necessaries ^* Money advanced for the purchase of necessaries ^ Previous supply 2** False representations of age "'" Other false representations 27 Insane persons ; early \a.vf 28 Lunatics' transactions void 29 Lunatics' transactions voidable 30 Voidable against hona fide purchaser 31 Ratification and disaflS,rmance 32 Lunatics' contracts valid in some cases 33 Necessaries . . . 34 What constitutes insanity 35 During guardianship lunatics' bargains are void 36 Drunkenness, when it incapacitates 37 Drunkards' bargains voidable 38 Effects of drunkards' bargains 39 Bona fide purchasers 40 Necessaries 41 Fraud upon intoxicated persons 42 Married women 43 Eights and liabilities under contracts 44 Effects of attempted transfers 45 Modifications in equity 46 Modern statutes 47 Agency of wife for husband 48 Corporations 49 CHAPTEE, m. FOEMALITIES OF THE CoNTEACT. Contracts to sell or sales may be written or oral — Provisions of the Sales Act 50 Statutes of Frauds in England and America 51 Statute of Frauds in Sales Act 52 "A contract to sell or a sale " 53 Contracts of work and labor — The English rule 54 Ajnerican rules 55 Exchanges gg Mortgages 57 Partnership agreements gg Agreements of compromise 59 " Of any goods " gQ Crops and fructus industriales gj Trees and fructus naturales go Water and ice ^o Minerals, manure o . Table of iContents. vii [References are to sections.] Fixtures 65 Buildings 66 Choses in action 67 Undivided interest in goods 68 " Of tiie value of " 69 " Five hundred dollars or upwards " 70 " Shall not be enforcible by action " 71 Third persons cannot take advantage of the statute 72 Satisfaction of the statute 73 Acceptance and receipt is not equivalent to delivery 74 Acceptance 75 Time of acceptance 7& Acceptance by dealing with the goods as owner 77 Right of objection 78 Right of rejection 79 Modern English rule 80 Who may accept 81 Parties may withdraw before the satisfaction of the statute 82 Acceptance under a mistake 83 Actual receipt 84 Forcible taking or giving of possession 85 Receipt of goods in the hands of a third person 86 New York rule 87 Receipt by delivery at a particular place 88 Receipt by delivery to a carrier 89 Receipt of goods in the hands of buyer ; 90 Receipt of goods in the hands of seller 91 Symbolic receipt 92 Documents of title S3 Part of the goods • 94 Choses in action 9^ Acceptance and receipt present questions of fact 96 " Or give something in earnest to bind the contract " 97 " Or in part payment " 98 " Time of payment " 99 " Some note or memorandum in writing of the contract or sale " 100 Form of memorandum 1"^^ Contents of memorandum — Parties , 102 Contents of memorandum — Price 103 Contents of memorandum — Other terms of the contract 104 Certainty of description l^^o Intent to make a memorandum is not requisite 106 Separate documents — Physical attachment 107 Separate documents — Incorporation by reference lOS Separate documents — Incorporation hj necessary inference 109 -Separate documents — Reference to the same transaction 110 Consistency of separate documents HI Signature ^^^ viii Table of Coittents. [References are to sections.] 113 By the party to be charged Or his agent in that behalf • Auction sales Brokers' notes ^^^ Time of making the memorandum ^^' Written contracts may be varied by subsequent agreement at common law 118 Contracts within the Statute of Frauds — Rescission 119 Variation of contract within the Statute of Frauds — General doctrine.. 120 Variation of contracts within the statute — Massachusetts doctrine 121 Amount of variation 1-^ Part performance of varied agreement 123 Hickman v. Haynea 124 Performance of part of contract within the statute 125 Conflict of laws 126 CHAPTEE IV. Subject-Mattee of the Conteact. Future goods — Provisions of the Sales Act 127 Contract to sell future goods 128 The acquisition of the goods bj' the seller may depend upon a contingency. 129 Sale of future goods 130 Estoppel 131 Sale of an expectation ." 132 Potential possession — General rule 133 Potential possession — Modern English law 134 American law — Crops 135 American rule — Young of animals 136 Sale of future property amounts to contract 137 Equitable effect of contract to sell — Holroyd v. Marshall 138 Theoretical basis for the doctrine 139 Extent to which the doctrine is adopted 140 Reasons for applying the rule to sales 141 Examination of these reasons 142 Seller's insolvency should not give equitable jurisdiction 143 Effect of the Bankruptcy Law 144 Choses in action 145 Sale of undivided shares — Provisions of the Sales Act 146 Possibility of sale by owner of undivided share in England 147 Sale of specified quantity from a larger mass in England 148 Reason for the English view and its validity 149 Buyer becomes tenant in common with other owners 150 Consequences of the doctrine of tenancy in common 1-51 Mass of undetermined quantity jg.? Confusion of goods j eg Elevator cases j-^ Table of Contents. ix [References are to sections.] Sale of a portion of a mass 155 The weight of American authority supports this view 156 Incidents of the tenancy in common 157 Selection 158 What are fungible goods 150 Destruction of goods sold — Provisions of Sales Act 160 A sale of specific goods is void if goods not in existence 161 Deterioration or partial destruction of the goods prior to the sale 162 Provision of Sales Act as to destruction of goods contracted to be sold. . 163 A contract may be avoided if the goods are destroyed or injured I'!- • "" Forms of documents of 1 itle 405 What is -a. negotiable document of — Provisions of the Sales Act 406 legislation in the United States in regard to the negotiability of docu- ments of title 407 Negotiation of documents of title by delivery — Provisions of the Sales Act 408 Negotiation of documents of title by indorsement 409 How far intent to transfer title is necessary 410 Documents of title marked " Not Negotiable " — Provisions of the Sales Act 411 Legal eflfect of a negotiable document of title when marked "Not Negotiable " 412 Transfer of nonnegotiable documents — Provisions of the Sales Act.... 413 Who has power to negotiate a document of title — Provisions of the Sales Act 414 xvi Table of Contents. [References are to sections.] Rights acquired by negotiation — Provisions of the Sales Act 415 When sale of document of title cannot transfer property to the buyer. . . . 416 Rights of a buyer of a document wiiere the bailee never received any goods 417 Liability of bailee upon a document vi'hen no goods received 418 Documents issued by a bailee's agent when goods have not been received. 419 Liability of bailee for misdescription 420 Lack of title in the depositor of the goods 421 Destruction of goods prior to negotiation of document 422 " Spent " documents can transfer no title 423 Liability of bailee for failure to take up negotiable document of title . . 424 What title is transferred by negotiation of negotiable document of title. 425 Negotiation of document transfers bailee's contractual obligation 426 Rights acquired by transfer of documents — Provision of the Sales Act.. 427 Creditor's rights when document is transferred 428 Indorsement of negotiable document may be compelled — Provisions of Sales Act 429 Necessity of indorsing negotiable documents of title 430 Warranties implied when documents of title are sold — Provisions of Sales Act 431 Implied warranties when documents of title are sold — Where Sales Act not in force 432 The indorser of a document does not guarantee performance — Pro- visions of Sales Act 433 The indorser of a document does not guarantee performance — When Sales Act not in force 434 Xo warranty from accepting payment of a debt 435 Fraud, mistake, and duress do not impair negotiation — Provisions of Sales Act 438 Effect of fraud, mistake, duress, or larceny, upon negotiation 437 Creditor's rights against goods for which a negotiable document has been issued — Provisions of the Sales Act 438 Creditor's rights against goods for which a negotiable document is out- standing 43^ Nature of the right of indorsee for security 440 Documents of title in sets 44 j Substitution of other goods for those bailed 442 Forged and altered documents 443 Time during which documents of title are valid 444 Table of Coisitents. xvii PART ni. Performance of the Contract, CHAPTEK XIII. CoNTEACTUAi, Obligations of the Paeties. [References are to seotions.] Nature of contracts to sell and sales 445 Obligation of delivery and acceptance — Provisions of the Sulus Act . . 440 Delivery and payment are concurrent conditions under the Salerf Act. 447 Delivery and payment concurrent conditions at the common law 448 Place, time, and manner of delivery — Provisions of the Sales Act .... 449 Place of delivery 4uU Time of delivery where no time fixed 451 Construction of agreements as to time of performance 452 Time of the essence of the contract 453 Delivery of goods in possession of a third person 454 Hour of delivery 455 The seller must put the goods in deliverable condition 456 Notice 457 Effect of delivering wrong quantity — Provisions of the Sales Act 458 Obligation in rerard to quantity — General considerations 459 Delivery of too small a quantity 460 Delivery of too large a quantity 461 Delivery of goods mixed with others 462 The preceding rules may be controlled by usage or agreement 463 Construction of agreement in regard to quantity 464 Instalment contracts — Provisions of the Sales Act 465 Divisible contracts — Meaning of the term 466 Divisible contracts — Conditions implied 467 Delivery to a carrier as fulfillment of the seller's obligation to deliver — Provisions of the Sales Act 468 When the seller's obligation to deliver is fulfilled by delivery to a carrier. 469 Buyer's right of inspection — Provisions of the Sales Act 470 Nature and effect of buyer's right of inspection 471 Right of inspection as a condition precedent to transfer of the property. 472 Right of inspection as a condition precedent to paying the price after the property has passed *^3 Right of inspection as a condition subsequent 474 Testing ^'^^ Time allowed for inspection 476 Expense of examination and testing 477 Carriers must allow inspection 478 Circumstances showing inspection was not to be permitted before payment. 479 Place of inspection •' ^80 Manifestation of acceptance — Provisions of the Sales Act 481 ii xviii Table of C'okte:n-ts. [References are to sections.] Meaning of acceptance 482 How acceptance is indicated 4'83 Acceptance does not bar action for damages — Provisi^ons of the Sales Act 484 Acceptance of goods does not indicate release of liability for defective per- formance 485 ^ The t/i""- may sue for defective quantity 486 The *elieT~may sue for delay in performance 487 Eight of tlie,aeiler to sue for defective quality 488 In some States acceptance of title waives right of damages for inferior quality 489 Damages recoverable by the buyer 490 Express provisions of the contract 491 Eeseission of acceptance 492 Acceptance of part of the goods 493 Rule of Civil Law 494 Waiver of defect In tender by making wrong objection 495 Buyer need not return goods — Provisions of Sales Act 496 The buyer need not return goods at common law 497 Resale of goods liy the buyer 498 Damages for failure to accept delivery — Provisions of the Sales Act. . . . 499 Distinction between a partial and a total breach of contract 500 One action only allowed for a single breach of contract 500(a) Sometimes one action only allowed for several breaches of contract. . 500(b) PART IV. Rights of an "Unpaid Seller Against the Goods. CHAPTEE XIV. An Unpaid Seller's Lien. Definition of an unpaid seller in the Sales Act 501 When a seller is unpaid 5Q2 Who is entitled to the remedies of an unpaid seller 503 Remedies of an unpaid seller under the Sales Act 504 Remedies of an unpaid seller at common law 5O5 When the seller has a lien under the Sales Act ; 506 When the seller's lien arises ggT Lien not lost by part delivery — Provisions of the Sales Act 508 When part delivery is a surrender of lien 5O9 Loss of lien — Provisions of the Sales Act 5IO Lien is lost by delivery to the buyer g,. Lien is lost by delivery to an agent or bailee for the buyer ' .'. ' 512 Lien is lost where goods are in a public place gi3 Lien is lost when goods are in the possession of the buyer 514 Agreement for continuance of a lien ci c Waiver of lien , , „ o'l 6 Table of Contents. xix CIIAPTEK XV. SlQ£E.4GE i^' Transitu.^ \^[Referenees a re to section s.] The right to stop in transitu- — Provisions of the Sales Act 517 Stoppage in transitu — Nature and origin of the right 518 Existence of the right in the Civil Law 519 Requirements for the existence of the right 520 Title must not be in the seller 521 Insolvency of the buyer 522 Vvhat is meant by transit — Provisions of the Sales Act 523 Character of bailment necessary for transit 524 Transit must be from seller to buyer 525 End of transit 520 Interception of goods 527 Attornment by bailee 523 Refusal of bailee to attorn or deliver the goods 529 Broken transit . . ., 530 Truckmen 531 Buyer's vessel or cart 532 Levy of execution or attachment will not defeat right to stop in transitu. 533 Partial delivery 534 Part payment 535 Stopping proceeds of goods 536 Pledge of goods in transit 537 Proceeds of goods sold in transit 538 Effect of stopping the goods 53^9 Ways of stopping the goods — Provisions of the Sales Act 540 Ways of exercising the right to stop in transitu at common law 541 Effect of outstanding bill of lading 542 CHAPTEE XVI. Kesale ok Eescission by the Sellee, When resale allowable — Provisions of the Sales Act 543 Right of resale and rescission under the English Law 544 Right of resale in the United States 545 Distinction between executory and executed sales 546 Manner in which sale should be made 547 Notice that resale is to be made 548 Notice of time and place of sale ^-19 Time of resale ^^° Resale during period of credit ^al Expense of resale ^"'-^ Resale at a profit ^°^ Rescission of an executed sale — Provisions of the Sales Act 554 Different remedies allowed by the law in the United States 555 Necessity of manifesting election 556 XX Table of Contents. [References are to sections.] When sale by the buyer aflfects the seller's lien — Provisions of Sales Act ^57 Buyer of goods subject to a lien cannot defeat lien 5^8 Circumstances aflfecting seller's choice of remedy 559 PART V. Actions for Breach of the Contract. CHAPTEE XVII. Remedies of the Seller on the Conteact. Seller's right of action for the price — Provisions of the Sales Act 560 Seller may recover price where property has passed 561 Recovery of price allowed in some jurisdictions where property has not passed 562 Decisions under Statute of Frauds as basis of rule ....'. 563 Restriction of New York rule 56i Rule often condemned, but just 565 Rule thought anomalous and opposed by some authorities 568 Defrauded seller may specifically enforce his rights 567 So in cases of mistake, duress, infancy, or insanity 568 So in case of unpaid seller 569 Rescission of title by buyer , 570 Conditional sales 571 Executory contracts 572 Summary of reasons for allowing seller to recover price 573 The Civil Law 574 Recovery of price payable on day certain 575 Prospective inability to pay 576 Illustrative cases, insolvency or transfer of property 677 Repudiation 57S Conditional sales 579 Damages for not accepting goods — Provisions of Sales Act 580 Seller's right of action for nonacceptance of goods 581 Measure of damages for nonacceptance of goods 582 Damages where goods have no market value 583 Effect of repudiation before the time for performance 584 Right to bring immediate action on repudiation 685 Ability on the part of the plaintifl' to perform after repudiation 5St> Measure of damages for anticipatory breach 587 Duty of the plaintiff to mitigate damages 588 Right of plaintiff to continue performance 58i) Seller's right of rescission — Provision of Sales Act 590 Meaning of rescission gg j^ Seller's right of rescission gg2 Seller's right to recover on quantum valebat when contract rescinded 59:5 Table of Contents. xxi CHAPTEE XVIII. Remedies of the Buyer on the Contract. [References are to sections.] Conversion or detention by the seller where the property has passed — Provisions of the Sales Act SM Buyer's rights where property has passed 595 Damages for failure to deliver goods when property has passed 596 Buyer's right of action where property has not passed — Provisions of the Sales Act 597 Buyer's right of action for failure to transfer property 598 Measure of damages 599 Rescission and recovery of price paid 600 Right to specific performance — Provisions of the Sales Act 601 Specific enforcement of sales of personal property 602 Buj'er's remedies for breach of warranty — Provisions of the Sales Act . . 603 Election of remedies for breach of warranty 604 Recoupment 605 Recoupment in the Civil Law 606 Action or counterclaim for damages 607 Rescission 608 Rescission in the Civil Law 609 Buyer must put seller in statu quo 610 Prompt election necessary 611 Buyer's remedies are mutually exclusive 612 Damages for defective quality — General rule 613 Consequential damages 614 Damages for breach of warranty in title 615 Interest and special damages — Provisions of the Sales Act 616 PART VI. Statutory Interpretation and Uncodified Rules Affecting the Validity of Sales. CHAPTEE XIX. Interpretation of Sales Act. Rules of interpretation in Sales Act 617 Force of custom ^1* Definitions in the Sales Act 619 Value 620 In good faith ^^^ Closing sections of the Sales Act 622 xxii Table oi? Contents. CHAPTEE, XX. Fbatjd asd Miseepkesehtatioh. [References are to sections.] Certain invalidating circumstances not governed by Sales Act 623 Definition of fraud 624 Differences of fraud in nature and legal elTect 625 Differences of fraud in regard to the person affected 62S ;Materiality of representation 627 jMatters of opinion 628 Matters of law 629 Promises and predictions 630 Silence 631 Fraudulent person's knowledge of falsity 632 Action in reliance on false impression 63S Unjustifiable reliance 634 Fraud on seller by impersonation 635 Representations of solvency 63(J Intention not to pay for the goods 637 Fraud on the buyer 635 Fraud against creditors 639 Fraudulent transfers for value 640 Voluntary conveyances 641 Creditors who may object G42 Sales in bulk 643 Fraud against subsequent purchasers 644 Remedies of defrauded buyer or seller 645 Action of damages for deceit 046 Rescission and restitution 047 Election of remedies 043 Restoration of consideration 64!> Rescission allowed only against fraudulent person 050 Remedies for transfers in fraud of creditors 651 Remedies for fraud against subsequent purchasers ; 652 CHAPTEE XXI. Mistake, Dueess, Impossibility, Bankeuptoy. Mistake g,g^ Mistake rendering agreement void gj_j Mistake in the expression of agreement gjj Rescission of contract for mistake gcj^ Mistake having no legal consequences gry Effect of duress ^-„ 60S Legal and equitable duress |.-„ Impossibility — How distinguished from mistake ggQ When impossiblity excuses ^ ' „., Bankruptcy Table of Coktents. xxiii CHAPTEE XXII. Illegality. [Beferences are to sections.] Illegality C63 Gaining contracts 604 Sales on Sunday C65 Effect of sales on Sunday 666 Ratification and adoption of Sunday contracts 667 Contracts and sales prohibited by statute 6fiS Illustrations of prohibitory statutes 669 Statutes purely for revenue 670 Statutes for the protection of the parties 671 Contracts of corporations doing business illegally 67i What constitutes doing business within a State 673 Contracts and sales against public policy at common law 674 Knowledge of or promotion of another's unlawful purpose 675 Time of illegality, when important 676 Executory and executed illegal contracts 677 Rescission of illegal contracts 67S Rescission allowed when illegal agreement unexecuted 679 Parties not in pari delicto 6oO Enforcement of legal portion of illegal contract 6S1 TABLE OF CASES. [References are to sections.] A. Aaron v. Harley Abat V. Atkinson Abba V. Smith Abe Stein Co. v. Robertson. .129, Abel V. Murphy.. .205, 250, 252, Abendpost Co. v. Hertel Abbott V. Creal V. Marshall V. Wolsey 79, Abraham v. Karger Accumulator Co. v. Dubuque St. Rv. Co Acebal v. Levy.. 89, 103, 171, 172, Acker v. Kimmie 491, Ackerman v. Redfield V. Rubens 547, 548, 555, Acme Electrical Illustraiting, etc., Co. V. Van Derbeck Acraman v. Morrice Adair v. Stovall Adam, Meldrum Co. v. Stewart. . Adams v. Barrett V. Byerly V. Collier V. Coulliard 674, T. Gay 665, 666, V. Gorham v. Johnson V. I>ee V. Merchants' Nat. Bank . . . V. Messinger V, Reed V. Roscoe Lumber Co . . . 344, V. Scales 114, V. Schiffer V. Steamer Trent V. Weaver Adams Machine Co. v. Interstate Building Assn Aderholt v. Embry 156, Adkins v. Flemming Adlani v. McKnight Adolph v. Minneapolis & P. Ry. Co 634, Mtna, Ins. Co. v. Reed L. I. Co. V. Sellers Agan V. Barry 22 269 71 188 253 495 33 638 80 507 201 548 607 426 563 667 268 343 620 649 678 585 641 675 667 418 200 326 417 602 632 346 115 630 424 358 324 159 679 277 654 629 32 71 [XXVJ Agnew V. Baldwin 73, 1U4 V. Fowler 452 Agra Bank, Ex parte 507, 662 Aguirre v. Allen 116 V. Parmelee 530 Ahl's Appeal 651 Aiken v. Blaisdell 669, 670, 075 Ainsworth v. Williams 667 Ajello V. Worsley 128 Alabama, etc., Ry. v. Jones 32 Nat. Bank v. Parker 280 State Bank v. Barnes 408 417 Albany Institution v. Burdick . . . 634 Albemarle Lumber Co. v. Wilcox. 167 Albin Co. v. Kentucky Table Co . 489 Albree v. Philadelphia Co 236 Albright v. Meredith 571 Alcock v. Aleock 29 Alden v. Dyer 571 V. Hart 225, 473, 497 Aldrich v. Bailey 35 Aldridge v. Johnson. ., 153, 258, 277 Alewyn v. Pryor 189 Alexander v. Brogley 654 V. Deneale 400 V. Ghiselin 57 V. Gibson 445 V. Haskins 32 V. Oneida Co 81 V. Swackhamer 635 V. Vanderzee 452 Alexiadi v. Robinson 452 Alford v. Wilson 106 Alkire Grocer Co. v. Tagart .... 500b Allaire v. Day 642 V. Whitney 646 Allard v. Greasert 70, 89 Allebach v. Godshalk 106 Allen V. Alesworth 495 v. Anderson 608 V. Bennet 72, 113 V. Berryhill 30, 32 V. Carr 366 V. Delano 334 V. Deming 666 V. Edgerton 399 V. Elmore 269 V. First Nat. Bank 663 XXVI Table ov Cases. [Keferences are to sections.] Allen V. Ford 648 V. Freeland 143, 602 v. C4ardiner 665 V. Jarvis 583 V. Johnson 370 V. Lake 183, 20,3 Y. Lardner 23 V. McCalla 368 V. Maine Central Ey. Co... 541 V. Massey '. 394 V. Maury 270 V. Milwaukee 672 V. Pink 215 V. Ruslifort 204 V. St. Louis Bank 317 V. Sanders 507 r. Schuchardt 120 V. Steiger 359 V. Wheeler 374 V. Williams 288, 408, 430 V. Young 215 Aller T. Pennell 190 AUis V. Billings 30, 32 V. Nininger 615 Allison V. Vaughan 489 Allman v. Davis 265 Allore V. .Jewell 33 Allyn V. Burns 270, 272, 273 V. Willis 511, 516, 533 Alpena Cement Co. v. Backus.. 190 467 Alpha Checkrower Co. v. Brad- ley 613, 614 ilills T. Watertown Engine Co 445 Alt V. Graff 2(3 Althouse V. Alvord 172 Alton V. Harrison 352 AlVey V. Reed 20 American Assn. v. Bear 633 Bank Co. v. Guardian Trust Co 236 Bridge Co. v. Heidelbach. . . 145 Broom Co. v. Addickes 467 Cotton Oil Co. V. Kirk. .168, 404 Electrical Co. v. Consumers Gas Co 218 Express Co. v. Lesem 478 Extract Co. v. Ryan 451 Hide & leather Co. v. Chalk- ley 258, 547, 549, 560 Ins. Co. V. MfWhorter 654 Ins. Co. V. Smith 072 Ins. Co. V. Stoy 672 Jewelry Cn. v. Witherington. 278 Leather Co. v. Porter 106 Mfg. Co. V. ^lidlaiid Steel Co. 105 Mtge. Co. V. Dykes 19 Mtge. Co. V. W'right 20 Nat. Bank v. Georgia 285 Nat. Bank ». Henderson. . . . 439 American Pail Co. v. Oakes.... 493 Publishing Co. v. Walker. . . 589 Refrigerator Co. hio R. R. Co. v. Brydon V. Wilkeng 412, Balue v. Taylor .' 105 156 102 399 106 495 6U1 203 346 25 323 681 .-)ii7 205 299 -:79 85 112 596 448 324 487 466 661 20 648 5li7 48 649 26 311 70 445 211 2iJ9 437 339 593 109 327 67 371 35 664 421 313 32fi 324 564 560 .Ml 2 6i;2 614 615 467 676 177 419 630 Table of Cases. XXIX [References are to sections.] Banchor v. Manael 675 Bancroft v. Dumas 668, 669 Bandernagle v. Cocks 500b Bangs V. Hornick 664 Banli V. Capital Elevator Co... 407 417, 419 V. Cummings 283, 289, 290 V. liBvy 386 V. McDade 354 V. Morgan 632 V. Owens 668 V. Partes 47 V. Sneed 33 V. Webb 654 Bank Commissioners v. New Hampshire Trust Co 577 Bank of Atchison v. Byers 613 Bank of Batavia v. N. Y., etc., Ry 419 Bank of Bristol v. Baltimore, etc., R. E. Co... 278, 285, 292, 407 412 Bank of Commerce v. Bissell... 287 Bank of Cumberland v. May- berry 666 Bank of Guntersville v. Jones Cotton Co 435 Bank of Huntington v. Napier. . 265 269 Bank of Litchfield v. Elliott ... 284 285, 291, 413 Bank of Little Rock v. Collins . . 332 Bank of Newport v. Hirsch 439 442 Bank of New York Assn. v. American Dock Co 41 /" Bank of Rochester v. Jones.. 285, 430 Bank of St. Albans v. Farmers' Bank 218 Bank of Toledo v. Shaw 286 Banks v. Harris Mfg. Co 106 V. V\'erts 667 Banner, Ex parte 289 Banning v. Marleau 642 Banta v. Chicago 67 Barber v. Andrews 158, 258 V. :*Ieyerstein 423, 441 V. Terrell 651 V. Thomas 265 Barber Asphalt Paving Co. v. St. Louis Cypress Co 324, 325 Barbour v. Conn. Mut. L. I. Co. . 642 V. Perry 329 Bard v. Van Etten 620 Bardes v. First Nat. Bank 621 Baring v. Galpin 329 Barkalow v. Pfeiffer 88, 490 Barker v. Dinsmore 63.5 V. Freeland 2C5 V. Hodgson 601 V. TuriibuU 488 Barnard v. Campbell 648 V. Kellogg ...234, 239, 246, 253 Barnes v. Barnes 22 V. Bluthenthal 552 V. Brown 599 V. Morrison 299 V. Rawlings 327, 328 V. Smith 664 v. Toye 22, 25 Barnett, Ex parte 635 V. Speir 567, 649 V. Stanton 200 V. Sweringen 191, '593 Barney v. Brown 399, 454 V. Dewey 221 Barningham v. Smith 599 Barnum v. Cochrane 221 Grain Co. v. Great Northern Ry. Co 407, 412 Wire Works v. Seley 208 Baron & Feme 44, 45 Barr v. Boyles 391 V. Church 403 , V. Gibson 102, 229 V. Reitz 92, 391 V. Satcher 53 Barrett v. Goddard 372 V. Kelley 339 V. Koella 648 V. Pritchard 326 V. Wheeler ' 215 Barrie v. Earle 466, 608, 681 v. Jerome 203 Barrington v. Skinner 327 Barron v. Alexander 631 Barrow v. Arnaud 582, 599 V. Paxton 385 Barrows v. Harrison 368 Barry v. Cavan.agh 582, 583 V. Coombe 101, 112 V. St. Joseph's Hospital .... 32 Bartholomew v. Finnemore 16 V. Markwick 593 Bartles & Dillon v. Dodd 402 Bartlett v. Bailey 19 V. Blake 372 V. Hoppock 203 V. Jewett 278 V. Smith 664 V. Wells 26 V. Williams 374 Barton v. Benson 299 V. Chicago Covering Co.... 211 V. Gray 118, 121, 123, 124 V. Kane 278, 461 V. Mulvane 672 Barton's Estate, Re i 662 Bascom v. Manufacturing Co . . . 483 Bass V. Glover 285 v. Pease 366 Bassett v. Brown 649 XXX Table of Cases. [Keferences are Bassett v. Camp 86 V. Lockard ^'■'^^ Bassinger v. Spangler 359 Basten v. Butter 605 Batavia v. Wallace 621 Batchelder, In re 524 V. Carter 399 V. Sanborn 328 Bateman v. Kingston 24 V. Robinson 680 Bates V. Ball 37 V. Callender 640 v. Cliesebro 99 V. Conkling 262 V. Hyman 33 V. Lancaster 679 V. Smith 136, 137, 161 County Bank v. Anderson. . 203 Batsford v. Every 665 Battalion Westerly Bifles v. Swan 602 Batterbury v. Vyse 177 Batthyany v. Bouch 602 Battle Creek Bank v. First Bank 136, 137 Bauer v. Both 654 Grocery Co. v. Smith 642 Bauman v. James 108 Baur V. Beall 359 Bax;ter v. Chapman 435 V. Portsmouth 34 Bay V. Cook 306 Bayly v. Merrel 634 Ba'yne v. Hard 269, 275 Bayonne Knife Co. v. Umben- hauer 522, 533 Beach's Appeal 332 Beal V. Brown 72 Beall V. McGehee 629 Beals V. Guernsey 395 V. Olmstead' 200 V. See 33 Bean v. Atwater 507 V. Bolton 516 V. Lamprev 71 V. IMiller .' 177 V. Valle 631 Bearden Mercantile Co. v. Madi- son Oil Co 189 Beardsley v. Hotohkiss 13 V. Smith 167 Beasley v. Beasley 32 V.' Surles 203 V. Swinton 613 Beattie v. Eobin 399 Beatty v. Howe Lumber Co 467 Beaupr§ v. Pacific & Atlantic Tel. Co 464 Bechtel v. Sheafer 421 to sections.] Beck V. Devereaux 500b & Corbet Co. v. Holbeek... 235 & Pauli Lith. Co. v. Colorado Milling Co 467 Becker v. Hallgarten 430 V. Holm 96 V. Wilcox 680 Beckett v. Gridley 457 Beckwith v. Talbot 108, 110 Bedell v. Kowalsky 461 Bedford v. Penny 621 Bedinger v. Wharton 19 Beebe v. Johnson 661 Beecher v. Conradt 500b, 507 Beeler v. Young 21, 23, 24 Beeman v. Buck 200 Beer v. Landman 678 V. \A"alker 245 Beers v. Dawson 364 Begbie v. Levi 666 Beggs V. James Hanley Co. .235, 236 Beharrell v. Quimby 177 Behn v. Burness 181, 600 V. National Bank 327 Behrens v. ilcKenzie 33 Beickler v. Guenther 16, 19 Beirne v. Dord 246, 252, 253 Belclier v. Sellards 487 Belding v. Frankland 620 V. Read 130 Bell V. Beazley 640 V. Campbell 680 V. Ellis 637 V. Hatl^eld 450, 457 V. HofTman 459 V. Kaufman 636 V. McClellan 358 V. McCloskey 391 V. Mills 239, 489 V. Offutt 555, 562 V. Reynolds 599 Bellairs v. Tucker 630 Belle City Mfg. Co. v. Grizzell.. 673 Belief ontaine v. Vassaux 283 Belleville Works v. Samuelson. . . 620 Bellows v. Russell 299 Bement v. Smith 562, 503 Bemis v. Leonard 452 Benecke v. Haebler 585 Benedict v. Beebee 65 V. Field 507 V. Schaettle 522 Benford v. Sehell 391 Beninger v. Corwin 631 Benjamin v. Andrews 347 v. Bruce 168, 464 V. Madden 400 Bennett v. Brumfitt 112 V, Buchan 207 Table of Cases. XXXI [Refei-enees are to sections.] Bennett v. Covington 664 V. McLaughlin 17 V. Morse 660 V. Nye 55 V. Shaugbnessy 592 Bros. Co. V. Tarn 324, 337 Benny v. Pegram 317 V. Uliodes 317 Benson v. Benson 640 v. Cromwell 495 Bent V. Cobb 114, 115 V. Hoxie 327 Bentall v. Burn 86,93, 428 Bentley v. Davidson 177 V. Greer 20 V. Griffin 48 Bentsen v. Taylor 181 Benton County Bank v. Bod- dicker 663 Beram v. Kruscal 663 Bergan v. Magnus & Co 343 Berger v. State 280, 283 Bergh v. Warner 48 Berk v. International Explosives Co 168, 464 Berka v. Woodward 668 Berkley v. Cannon 29,38, 39 Berkson v. Ileldman 636 Berman v. Clark Co 613 V. Woods 200, 608 Bernard v. Diekins 593 Berndtson v. Strang 532, 538 Bernhardt v. Walls 67 Bernstein v. Loomis 250, 252 Berrv v. American Central Ins. ' Co 649 v. Nail 455 Berthold v. St. Louis Construc- tion Co , 467 Berwin v. Bolles 67, 95, 98 Best V. Bauder 670 V. Flint 229, 230, 488, 489 V. Fuller 366 Bestor v. Hickev 20 Bethel Steam Mill Co. v. Brown. 280 Bethell v. Bethell 629, 630 V. Clark 530 Betteley v. Eeed 421 Bettini v. Gye 467 Betts v. Carroll 15, 17 Betz V. McMorrow 278 Beverley's Case 28, 35 Beyer v. Henry Huber Co 487 Beverstedt v. Wiiicna Mill Co.. 168 •' 464 Bibb V. Allen 105, 116 V.Baker's Admr 651 Bickel V. Sheets 675 BickfoTd V. Kerr 4^b Bickle V. Irvine ^'a Bidault v. Wales 637 Biddinger v. Wiland 621 Biddle v. Bond 421 V. Coryell 507 Bierce v. Hutchins 516, 579 Bierman v. City Mills Co. . .231, 235 257, 445 Biest v. Ver Steeg Shoe Co. .104, 108 Bigby V. Warnoek 640 Bigelow V. Benedict 664 V. Grannis 20 Bigg V. Whisking 70 Bigge V. Parkinson 239, 242 Biggs V. Evans 314, 315 V. Lawrence 670, 675 V. Perkins 207 Bigler v. Flickinger 628 Bignall, etc., Mfg. Co. v. Pierce, etc., Mfg. Co 585 Bilafsky v. Conveyance Title Ins. Co 633 Bill V. Bament. . . .71, 72, 74, 91, 117 V. Fuller 264 Billin V. Henkel 89 Billingsley v. White 391 Bindley v. Martin 402 Binford v. Bruso 654 Bingham v. Scott 664 V. A'andergrift 326 Binghamton Trust Co. v. Auten. . B4ti Birchell v. Neaster 71 Bird V. Andrews 360 V. Boulter 115 V. Brown 522, 529 V. Munroe 71, 117 Birdsey v. Butterfield 628 Birdsinger v. McCormick Machine Co. . 614 Birdsong v. Birdsong 42 Birge v. Edgerton 399 Birks V. French 666 Bisbee v. McAUen 669 Bisbing v. Third Nat. Bank 391 Bi-shop V. Allen 654 V. American Preservers' Co. 678 V. Bishop 62 V. Fulkerth 439, 620 V. Honey 675 V. Hubbard 640 V. Insurance Co 176 V. Minderhout 304 V. O'Connell 378 V. Palmer 681 V. Small 628 Bissell V. Balcom 99 V. Hopkins 383, 385 Bixby V. Moor 681 Black V. Delbridge Co 70 V. Elliott 614 V. Railway Co 654 XXXll Table op Cases. [References are to sections.] Black V. Security Mutual Assn. . 669 V. Walton 632 V. VVoodrow 589 Blackburn v. Reilly 467 Blackman v. Pierce 530, 533 Blacknall v. Parish 112 Black River Co. v. Warner.. 562, 564 Blackshear v. Burke 346 Blackwood v. Cutting Packing Co 156, 269 Blaess v. Xichols 211 Blaidsell V. Citizens' Nat. Bank.. 435 Blair State Bank v. Bunn 640 Blaisdell v. Holmes 34, 36 Blake v. Boisjoli 641 V. Lobb's Estate 660 Blakeley v. Patrick 156 Blakely v. Sousa 861 Blalock V. Clark 453 V. Phillips 648 Blanchard v. Cooke 329, 337 V. Low 258 V. Page 426 Blass V. Anderson 666 Blaltniacher v. Saal 663 Blaud V. Gabler 385 Bleakley v. Smith 105 Bledsoe v. Thompson 679 Blenkinsop v. Clayton 77, 91 Bligh V. James 681 Blinn v. Schwarz 29, 30, 32 Blish V. ilcCornick 398 Bliss Co. V. United States Gas- light Co 190, 450, 456 Block V. Darling 679 V. ilcMurry 680 V. Oliver 417, 418 V. Shaw 14i, 144 Blocker v. Burness 354 Blodgctt v. Lanyon Zinc Co.. COS, 672 Bloom V. Richards 6U.">, 666, 668 Bloomer v. Bernstein. . .467, 577, 062 V. Nolan 19, 20 Bloomingdale v. Chittenden 16 V. Hewett 464 V. Memphis, etc., R. R 522 Blossom V. Shotter 189 Blount V. Spratt 33 Blowers v. Canadian Pacific Ry. Co 285 Bloxam v. Morley 507, 545 v. Sanders 343, 448, 507 545, 662 Bloxsome v. Williams 665 Bloyd V. Pollock 280 Bluck V. Gompertz 112 Blue V. American Soda Fountain Co 304 Blum V. Marks 552 Frank & Co. v. The Caddo. . 426 Blydenburgh v. Welsh 451, 635 Blydenstein v. New York Security & Trust Co 437, 442 Board of Commissioners v. Young S61 ot Education v. Townsend. . 161 Boardman v. Cutter 67 V. Keeler 399 v. Sill 516 V. Spooner 93, 104, 112 114, 428 Boast V. Firth 661 Boatmens' Sav. Bank v. Western R. R. Co 424 Boaz v. Schneider 269 Bobb V. Woodward 651 Bobbs-Merrill Co. v. Snellenburg. 8 V. Straus 674 Bock V. Healy 487 Boddy V. Henry 613, 632 Bodkin v. Merit 72 Boeckeler v. McGowan 108 Bogigian v. Hassanoff 57, 58 Bogy V. Rhodes 262 Bohn Mfg. Co. v. Hynes 507 Bohtlingk v. Inglis." 519, 532 Boinest v. Leignez 239 Bokemper v. Hazen 33 Boles V. Merrill 628, 648 Bolin V. Huffnagle 532 Bolles V. Crescent Drug & Chem- ical Co 661 Bollin V. Hooper 66T Bollman v. Burt 467 Bollnow V. Roach 33 Bolton V. Railway Co 512, 521 V. Riddle 451 Bond V. Brewer 327 V. Clark 200, 215 V. Greenwald 265 Bonesteel v. Flack 329 Bonnot Co. v. Newman 654 Bonzi V. Patrick 318 Boody V. McKenney 20 Booker v. Wingo 678 Bool V. Mix 16 Boone v. Hardie 386 Booth V. Rolling Mill Co 189, 661 Boothby v. Plaisted 184, 185, 250 251 473 V. Scales 225, 445,' 608 & Co. V. Brown 368 Boothroyd, Re 640 Borden & Selleck Co. v. Eraser . . 233 Bordentown v. Wallace 13 Bordwell v. Collie 221 Borland v. Walker 354. Borradaile v. Brunton 614 Borrekins v. Bevan V99 Borrowman v. Free 459. 586 Table oe- Cases. XXXI 11 [References are to sections.! Borthwick v. Young 253 Borum v. Bell 34 V. Swift & Co 104 Boston, Re 640 & Albany R. R. v. Richard- son 218 Deep Sea Fishing Co. v. An- sell 495, 591 Woven Hose Co. v. Kendall. 614 Bostwick V. Jardine 461 V. Leach 62 Boswell V. Green 167, 269 V. Kilborn 148 Botcher v. Berry 379 Bouehell v. Clary 21 Bond V. Bronson 391 Boulden v. Estey Organ Co 672 Bourbon Bank v. Porter's Exrs. 370 Bourland v. Peoria County 101 Boutelle v. Melendy 667 Bowden v. Spellman 648, 651 Bros. & Co. V. Little 245, 280 Bowditch V. New England Mutual Ins. Co 663 Bowen v. Bailey 507 V. Burk 511 V. Lansing Wagon Works. . . 327 Bowers v. Anderson 98 V. Bowers 62 V. Ocean Accident, ©tc, Corp. 108 Granite Co. v. Farrell 467 Bowersox's Appeal 522 Bowes V. Shand 225, 452 Bowker v. Hoyt 460 Bowlby V. Bell 67 Bowles V. Woodson 106 Live Stock Commission Co. V. Hunter 378 Bowlin Liquor Co. v. Beaudoin. . 278 Bowman v. Carithers 633 V. Clemmer 200 V. Conn 61 V. Herring 361 V. McCIenahan 298 Boyce v. McCulloch 119 V. McDonald 324 Boyd V. Eaton 681 V. Gunnison 451 V. Hallowell 191 V. Lett 448 V. McCulloch 507 V. Shiffer 636, 648 V. Siffkin 188 V. Wilson 251 & Co. T. Pottle 378 Boyden v. Boyden 20 Boyer v. Berriraan 30 v. Fulmer 660 Boyes v. Bluck 452 Boyle V. Adams 299 V. Rankin 651 Boynton v. Libby 327 V. Page 665 V. Veazie 88, 92 Bozeman v. Browning 19 Brabin v. Hyde 98 Brackett v. Griswold 633 V. Hoyt 668 v. Watkins 640 Braddock Brewing Co. v. Pfaudler A'aeuum Co 328 Glass Co. V. Irwin 280 Bradford v. Beyer 651 V. Bush 445 V. Jenkins 676 V. Manly 249, 250, 252, 608 Bradley v. Benjamin 586 V. Bertoumieux 467 V. Buford 370 V. Frost 662 V. Gotzian 640 V. Harter 121 V. Holdsworth 67 V. King 467 V. McAfee 326, 338 V. Michael 502 V. Obear 620 V. Pratt 21, 24 V. Rea 171, 605, 667 V. Seaboard Nat. Bank 636 Currier Co. v. Bernz 493 Bradner v. Roffaell 177 Bradshaw v. Insurance Co 176 Bradstreet v. Heran 420 Brady v. Cassidy 460 V. Haines 391 V. Harrahy 98 V. Todd 445 V. United Life Assn 467 Bragg V. Morrill 237 Braithwaite v. Foreign Hard Wood Co 586 Braley v. Powers 628 ■Branch v. Palmer 467, 664 Brand v. Focht 85 V. Weir 478 Brandon v. Brown 19, 220 Printing Co. v. Bostick.278, 339 Brandt v. Lawrence 466 Branham v. Stallings 678 Branson v. Heckler 425 V. Turner 203, 207, 608 Brant v. Gallup 5 Brantlev v. Thomas 251 V. Wolf 14, 19, 26 Brashford v. Buckingham 44 Brassel v. Troxel 577, 662 Braucht v. Graves-May Co 19 xxxiv Table of Cases. [Eeferenees are to sections.] Braumont v. Breageri 77 Braunn v. Keally 67d Brawley v. United States ... 203, 464 Brawn v. Keller 391 Breckenridge v. Ormsby 32, 33 Breed v. Judd 23 Brennan v. Ford 448, 575 Brent v. Green 114 V. Williams 25 Brentnall v. Marshall 507 Breslauer, Re 662 Breslin v. Brown 299 Bretz V. Diehl 154 Brewer v. Arantz 633 V. Horst-Lachmund Co. .105, 108 109 Lumber Co. v. B. & A. R. Co 502, 526 Brewster v. Sime 313 V. Taylor 81, 8S V. Wooster 649 Brice, Re 23 Brick Co. v. Pond 660 Presb. Chureb v. City of New York 661, 676 Bridge v. Wain 196 Bridgeford v. Adaois 648 Briflgford v. Crocker 553 Bridges v. Bridges 666 Brigg V. Hilton 215, 489 Brlggs V. A Life Boat 275 V. Merrill 651 V. Rumely Co 204 V. United States 72, 135, 674 V. Weston 363 Brlgham v. Fayerweather 29 V. Hibbard 473 V. Eetelsdorf 255 Bright V. Taylor 193 Brinkerhoff v. Briggs 48 Brinsmead v. Harrison 4 Briskman, Re 662 Bristol V. Mente 76, 90, 106 Bristol Bank v. Baltimore, etc., R. R. Co.. . .278, 285, 292, 407, 412 Bristow V. Eastman 27 Brittain Co., John S. v. Bu- chanan 327 Broadwater v. Darne 30, 38 Broadwell v. Howard 366, 417 Brock V. Knower 94 V. Rice 298 T. The Dwelling House Ins. Co 176 Broekhaus v. Schilling 628 Brockway v. Jewell 41 Brodhead v. Eeinbold ... 105, 577 Brodrib v. Brodrib 33 Brogden v. Marriott 169 Bronson v. Gleason 450 V. Russell 324 Brooke i. Laurens Milling Co . . . 489 550 V. New York, etc., Ry 419 V. Robson 550 Iron Co. V. O'Brien 530 Brooker v. Scott 23 Brooks, Ex parte 324 V. Camak 234 V. Cooper 299 V. Hanover Nat. Bank 426 V. Hassall 445 V. Matthews 654 V. Powers 372, 374 V. Sawyer 26 Broughton v. Broughton 651 Broner v. Goodver 637 V. Peabody. .' 284, 311, 421 Brown v. Adair 669 V. Baird 205 V. Bigelow 207 V. Billington 336 V. Brown 106 V. Bro^yning 665 V. Butcher's Bank 112 V. Castles 204 V. Childs 164 V. Delano 676 V. Dickerson 361 V. Duncan 670, 674 V. Dunham 26 V. Edgington 229, 232,235 V. Fitch 324 V. Foree 621 V Foster 191, 483 V. Gardner 674 V. Harris 489 V. Haynes 324 V. Johnson 452 V. Leach 634 V. Lobdell 636 V. McClanahan 112 V. McCune 26 V. Marr 271 V. Mitchell 386 V. MuUer 599 V. Neilson 135 V. Nelson 483 V. Norman 649 V. Northcutt 157 V. Odill 585 V. O'Neal 358 V. Petersen 516 V. Pierce 615 V. Powell Coal Co 419 V. Raisin Fertilizer Co 669 V. Reber 296 Table of Cases. XXXV [Eeferencea are to sections.] Brown V. Eilev 366 V. Roland" 66 V. Sharkey 599 V. Slauson 58 V. Smith 633 V. Snider 70 V. Timmany 679 V. Weldon 207 V. ^A^lipple 109 V. William Clarlc Co 286 & Haywood Co. v. Wunder. . 55 Browne v. Hare 284, 305 V. United States 164, 661 Brownfield v. Johnson. . 156, 278, 463 Brownfield's Ex. v. Brownfield.. 119 Browning v. Hart 385 V. McNear 234, 252, 489 V. Magill 347 Brownlee v. Bolton 480, 547, 552 Brownville Slate Co. v. Hill 346 Bruce v. Fiss Horse Co 614 Bruce's Admrs. v. Smith 373 Bruggemann v. Wagener 376 Brumbaugh v. Richcreek 32 Brummel v. Stockton 370 Bruner v. Moore 452 Brunswick v. Valleau 675 Grocery Co. v. Lamar .... 75, 87 89, 91, 552 Brvan v. Hawthorne 373 V. Hunt 118 Brvans V. Nix..... 131, 277, 278, 417 Bryant v. Crosby 61, 203,210 V. Isburgh 608 V. Kelton 396 V. Moore 445 V. Pottinger 19 V. Richardson 23 V. Ware 153 V. Whitcher 347 Bryce v. Ehrmann 270, 271, 273 Bryson v. Haley 675 Buchanan v. Hubbard 14, 26 V. Kauffman 221 V. Laber 215 V. Layne 660 V. Minneapolis Threshing Mach. Co 491 Buck V. Piclrwell 62, 106 Buckey v. Buckey 35 Buckeye Buggy Co. v. Montana Stables 493 Buckingham v. Osborne .... 76 Buckland v. Ebeling 318 Buckley v. Collier 43 v.'Duff 391 V. Furniss 533, 534 V. Humason 669 V. Meidroth 191 V Waterman 88 Buckman v. Levi 278, 593, 595 Buckmaster v. Consumers' Ice Oo. 168 V. Smith 334 Buckner v. Ries 58 Buckstaff V. Russell 215, 271 Budd V. Fairmaner 196, 205, 213 V. Power 218 Buddie V. Green 132, 454 Budlong V. Cottrell 327, 341, 344 Euel V. Miller 119 Buffalo Co. V. Phillips 489 Zinc & Copper Co. v. Crump. 672 Buffington v. Curtis 374 Bugbee v. Stevens 327 Bugg V. Wertheimer-Schwartz Shoe Co 636, 637 Bughman v. Bank 637 Buhl V. Stephens 71 Iron Works v. Teuton 454 Buick Motor Co. v. Reid Milling Co 232, 239, 487, 489, 490 Bulkley v. Morgan 648 V. Waterman 88 Bull V. Bath Iron Works 489 V. Griswold 61, 366 V. Harragan 669 V. Robison 245 BuUard v. Moor 32 V. Northern Pae. Ry. Co 676 V. Smith 58, 664 Bullis V. Borden 403 Bullitt V. Farrar 632 Bullock V. Sprowls 19 V. Tschergi 73, 89 Bulwinkle v. Cramer 247 Bumgardner v. Leavitt 602 Bunch V. Weil 230 Sunday V. Columbus Mach. Co... 607 Bunker v. McKenney 334 Bunn V. Postell 32 Bunney v. Poyntz 507, 509 Bunting v. Saltz 358 Burbank v. Crooker 329 Burbridge v. Seely 388 Burch V. Pedigo 332 BuTchinell v. Hirsh 636, 637 Burdick v. Gill 642 Burditt V. Howe 329 Burdon v. Payne 145 etc., Sugar Refg. Co. v. Fer- ris Sugar Mfg. Co 145 Burge V. Ashley 679 V. Cone 374 V. Stroberg 203 Burgert v. Borchert 378 Burgess v. Boetefeur 452 Fibre Co. v. Broomfield. . . . 105 168, 464 Burghall'a Assignees v. Howard. 517 Burghart v. Angerstein 25 V. Hall 25 Burhans v. Corey 98 XXXVl Table of Cases. [References are to sections.] Burke v. Allen V. Mead Burke, Re V. Shaver Burkev v. Self Burkhardt v. Georgia School 'township Burkholder v. Beetem's Admr . . Burley v. Russell Burnard v. Haggis Burnby v. Bollett Burneil v. Marvin Burnett v. Hensley 203, Burnham v. Kidwell Burnle3' v. Tufts Burns v. Fidelity Real Estate Co. V. Lane 204, 629, V. Maluiniiah Burr V. Atlanta Paper Co V. Redhead 203, 013, Burrell v. Ilighlevman Burrill v. Stevens 630, Burroughs v. Gfuano Co V. Hunt V. Richman Burrow w Railroad Co Burrowes Co. v. Rapid Safety Filter Co 252, 476, Burrows v. Stebbins V. Stodilard Bursinger v. Bank 29, Burt V. Bowles V. Dew-ey 21S, 221, V. Dutcher V. ilason Burtis V. Thompson Burton v. Curyea V. Gage V. Great Northern Ry. Co . . V. Platter V. \'\'ilkiuson Busch V. Hart V. Wilcox Buschman v. Codd Bush V. Bender V. Breinig 30, 37, 38, V. Export Storage Co V. Holmes V. Roberts V. Rogan Bushel V. Wheeler Buslmell v. Bicknell Busk V. Davis v. Spence Buskirk \. Peck... 258, 261, 202, 29 113 531 585 641 Bussey v. Barnett . Bussing V. Rice. . . Butler V. Butler. . V. Howell . . . 601 663 26 27 242 332 205 33 304 119 121 634 628 489 614 55 637 634 679 38 487 399 360 37 629 615 261 631 585 425 98 168 630 421 107 445 013 511 39 417 76 621 651 77 273 148 190 265 269 343 620 190 359 Butler V. Lee 667 V. Moore 614, 651 V. School District 271, 272 V. Stoddard 385 Butt V. Caldwell 370 V. Ellett 135 Butterfeild v. Burroughs. . . .206, 211 Butterfield v. Baker 374 Buttermere v. Hayes 71 Butters v. Haughwout 620 Butterworth v. iNIcKinly 265 Button V. Rathbone 620 V. Trader 571 Butts V. Swartwnod 335 Buxton V. Hamblen 669 V. Jones 633 V. Rust 72, 106, 111 Byars v. Stubbs 631 Bvassee v. Reese 62 Byer v. Etnyre 373 Byers v. Chapin 608 Byles V. Colier 282, 269 Bynum v. Miller 644 Byrd v. Bradley 370 V. Campbell Printing Press Co 210 V. Rautman 648 Byrne v. Fremont Realty Co. . . . 115 v. Stewart 628 Byrnside v. Burdett 218 Byrod's Appeal 391 Byxbee v. Dewey 358 C. Cabeen v. Campbell 530 Cable Co. v. Hancock 106 Cabot V. Winsor 464 Cadbury v. Nolen 391 Cadogan v. Kennett 385 Cady V. Walker 211 V. Zimmerman 379 Caerleon Tin-Plate Co. v. Hughes. 116 Cagger v. Lansing 106 Cahen v. Piatt 467, 599 Cahill V. Bigelow 72 v. Smith 221 Cahn V. Pockett's Channel Co. . . 281 289, 292, 437 Gaboon v. Marshall 358 Cain V. Dickenson 646 V. McGuire 62 Cairns v. Page 323 Cake V. Peet 655 Calahan v. Babcock 533 Calais Steamboat Co. v. Van Pelt's Admr 316 Calcott, Re 662 Calcutta Co. v. De Mattos. . .164, 280 302 Caldwell v. Ball 441 V. Eenry 613 Table of Cases. XXXVH [References are to sections.] Caldweil v. Xortli Carolina. .669, 673 V. Wentworth 669 California Sav. & Loan Soo. v. Harris 672 Callcins v. Lockwood 88, 92, 360 Call V. Seymour 324, 326 Callahan v. Hardin 643 Callanan v. Chapin 106 Callen v. Thompson 395 Callighan v. Myers 269 Calliope Min. Co. v. Herzinger.. 118 Calvert v. Schultz. . . . 84, 86, 87, 89 Camac v. Warriner 209 Cambloso v. Maflfett 674 Camden, etc., E. R. Co. v. May's Landing, etc., R. R. Co . . 49 Iron Works v. Fox 189 Cameron v. Estabrooks 654 V. Montgomery 391 V. Wells 451 V. White 589 Cammell v. Sewell 339 Camp V. Barker 193 V. Moreman 103 Campbell v. Alford 430 V. Atherton 336, 337 V. Hamilton 368 V. Lodge 491 V. Jlersey Docks 275 V. Segars 668 V. Smith 201 V. Stakes 27 V. Thomas 106 V. Young 667 Press Co. v. Hickok 579 V. Rockaway Pub. Co ... 57 1 Printing Press Co. v. Marsh. 327 452, 592 V. Thorp ■. . . 191 V. Walker 326, 337 Campion v. Marston 224, 231, 233 488 Canada Bank Note Co. v. Toronto Ry. Co 54 Canadian Bank v. Baum 625 V. McCrea 511 Canadian Niagara Power Co, Re. 189 Canal Bank v. Copeland 296 Canham v. Piano Mfg. Co 608 Cantine v. Phillips 22 Cantwell v. Pacific Exp. Co 426 Cape Fear Lumber Co. v. Mathe- son Capehart v. Furman Improve- ment Co 280 Capen v. Glass Co 599 Caples V. Steel 631 Capron v. Porter 379 Cardinal v. Edwards 326 Cardwell v. McClelland 631 Carew'B Estate, Re 299 Carkeek v. Boston Nat. Bank... 641 Carleton v. Jenks 197, 198, 233 489 V. Lombard ...235, 237, 491, 614 v. Whitcher 681 v. Woods 681 Carlill V. Carbolic Smokeball Co 169 Carlisle v. Corrigan 177 V. Tindall 651 Carlton v. Hulett 628 Carmack v. Gordon 329 Carnahan v. Bailey . . 637 Carondelet Iron Worlcs v. Moore. 205 483 Carpenter, Re 338 V. Carpenter 17, 19 V. Clark 381 V. Galloway 121 V. Glass 156 V. Graham 156, 158, 375 V. McClure 651 V. Mayer 391' V. Pridgen 26 V. Rodgers 30, 38, 39 V. Scott.. 284, 324, 331, 332, 336 Carr v. Clough 16 V. Lynch 105 Carroll v. Wiggins 324 Carskaddon v. South Bend 106 Carson v. Allen 593 v. Browder 61 v. Dunham 674 -Rand Co. v. Stern 672 Carstarphen Co. v. Fried 643 Carstens v. McDonald 585 Carter v. Beckwith 36 v. Crick 196 V. Fischer 71 V. Graves 377 V. Harden 629 V. Howard 48 V. Stanfield 364 V. Wallace 273 V. Watkins 360 V. Willard. .88, 92, 374, 428, 454 Rice & Co. V. Cream of Wheat Co 346 Carthage v. Duvall 279 City of V. Munsell 278, 279 Cartwright v. Dickinson 629 V. Wilmerding 318 Carver v. Graves 547 Cary v. Gruman 608 V. Hotailing 637 -Lombard Lumber Co. v. Thomas 672 Case v. Hall 615, 638 V. Kramer 98 Co., J. I. V. McKinnon. .201, 203 206, 445 XXXVlll Table of Cases. [References are to sections.] Case Plow Works v. Niles & Scott Co 215, 236, 613 Threshing Machine Co. v. Smith 113, 491 ^■\■orks V. Ross 620 Casey v. Cavaroc 440 Cash V. Clark 71, IOC, 117 Register Co. v. Townsend Grocery Store 203 Cashman v. Root 664 Cason V. Cheely 55 Cass V. Gunnison 15S Castle V. Playford 302 Caswell V. Coare 608 V. Hunton 628 V. Jones 399 Cathcart v. Snow 405 Catlett V. Dougherty 119 Catlin V. Bell 317 T. Haddox 20 V. Jones 343, 448, 586 V. Tobias 460 Catling V. King 105 Catron v. fl'arren 48 Catterlin y. Bush 100 Caulkins v. Fry 29, 37, 38 Cavagnaro, Re 326 Cavallaro v. Texas 620 Cavanaugh v. Casselman 113 Cawston V. Sturgis 613 Cayuga Bank v. Daniels. .. .285, 430 Caywood v. Timmons 2G5 Cecil Bank v. Snively 651 Cedar Rapids Ins. Co. v. Butler. 648 Cefalu V. Fitzsimmons 480 Center v. Mitchell 135 Central of Georgia Ry. Co. v. Gortatowsky 5 Transportation Co. v. Pull- man's Co 49 Trust Co. V. Arctic Mfg. Co. 488 613 V. West India Co 311 Cerny v. Paxton & Gallagher Co. 57 630 Cessnn v. Nimick 391 Chadsey v. Greene 207 Chadwell v. Reed 35 Chaflin v. Rogers 70 Chalmers, Ex parte. .. .502, 507, 509 577, Gfi2 V. Harding 203, 628 Chamberlain v. Dow 81 Chamberlin v. Ficher 675 V. Fuller 634 V. Scott 503 Chambers v. Lancaster 77, 483 V. Mitchell 630 V. Sallie 641 V. Stine 391 Chamblee v. JlL-Kenzie 269 Champion v. Plummer 101, 102 V. Woods 629 Machine Co. v. Mann. ..60/, 4'Jl Champlin v. Rowley 460 Chancellor v. Wiggins 221 Chandelor v. Lopus 183, 195, 199 Chandler v. Fulton .322, 537 V. Glover's Admr 20 V. Johnson 081 V. Simmons 13, 16, 19 V. Thompson 215 Chanter v. Hopkins 180, 225, 229 236 Chapin v. Shafer 15, 16 Chaplin v. Rogers 70, 74, 91 Chapman v. Atlanta Guano Co. . 634 V. Beltz Co 585 V. Hughes 22, 020 V. Larin 552 V. Lathrop 575 V. Morton 483, 498 V. Shepard 156 V. Speller 219 V. Withers 271 Charles v. Carter 245, 472 :Moe Co. V. J. H. Loque Co. . 313 Charter Gas Engine Co. v. Kel- 1am 215 Chase v. Burkholder 681 V. Ingalls 2S4, 3:11, 336 V. Ralston 3!il V. Snow 399 V. Union Stone Co 273 V. Washburn I.57 Chatham Furnace Co. v. Moffatt. 032 Chattanooga R. & C. R. Co. v. Evans 668 Chattock V. MuUer 299 C'heale v. Kenward 602 Cheatham v. Hawkins 386 Cheatle v. MacVeagh 346 Chemical Xat. Bank v. World's Columbian Exposition 577 Cherry V. I. W. v. Florence I. R. Co 587 Chesapeake Shoe Co. v. Seldner. . 338 SS. Co. V. Merchants' Bank. 2S5 412, 424 Chesebrough v. Pingree 106 Chester v. Comstock 032 Chestnut v. Harbaugh 666 Chicago V, Galpin 464 V. Greer 582, 583, 5S9 V. Railroad Co 676 etc., Co. V. Barry 589 etc., Ry. Co. v. Belliwith.. 654 V. Green 654 v. Jones 464 etc., Ry. v. Lewis 29 etc., Ry. Co. v. Painter 533 etc., R. R. Co. V. Price 177- Table of Cases. XXXIX [References are to sections.] Chicago, etc., R. Co. v. Shea. . . . 426 & Great Eastern Ry. Co. v. Dane 464 House Wrecking Co. v. Du- rand 257 Packing Co. v. Tilton 232 Provision Co. v. Tilton. .233, 246 Railway Equipment Co. v. Merchants' Bank.. 304, 330, 331 Telephone Supply Co. v. Marne 206 Chickering v. Bastress 338 & Sons V. White 376 Childs V. O'Donnell 210, 244 V. Omaha Paraphernalia House 452 V. Simmons 391 Chimene v. Pennington 675 Chinery v. Yiall 544, 596 Chism V. Schipper 177 Chouteau v. Jupiter Iron Works. 118 Christenson v. Nelson 324, 331 Christian v. Knight 203 Christopher v. Covington 370 Christy v. Ashlock 366 Chrysler v. Canady 628 V. Renois 650 Chumar v. Wood 383 Church V. Knowles 669 V. JIuir 651 V. Proctor . ..168, 464, 674, 675 676 Church's Admr. v. McLeod 327 Churcliill V. Demeritt 327 V. Holton 460 V. Merchants' Bank 452 Cincinnati Cooperage Co. v. Gaul. 636 Equipment Co. v. Strang. . . 336 Mut. Health Assur. Co. v. Rosenthal 672 Citizens' Banking Co. v. Peacock. 439 Citty V. Manufacturing Co 71 City Bank v. Rome, etc., R. R. ' Co 430 etc., Rv. V. Basshor 236 Nat. B'ank v. Tufts 326 of East St. Louis v. Freels . . 669 of South Bend v. ilartin 279 Clabbon, Re 24 Claes, etc., Mfg. Co. v. McCord. . 585 Claflin V. Carpenter 62 V. Mess 642 V. Rosenberg 378 Clampet v. Bells 102 Clark V. American Coal Co 674 V. Baker 462 V. Clyde SS. Co 419 V. Depew 641 V. Cox 48, 378 V. Draper 545 Clark V. Duffey 59 v. Fay 121 V. Fosa 664 V. Greeley 29S V. Guest U2 V. Hayward 327, 334 V. Hill 327, 336 V. Labrecke 91 V. Lancy 452 V. Lee 375 V. Lopez 33 V. McMahon 641 V. Marsiglia 589 V. Mauran 502 V. Middleton 672 V. Moore 460 V. Morse 382 V. Mumford 615 V. Munroe Co 636 V. Protection Ins. Co 668 V. Reeder 633 V. Ricker 681 V. Shannon & Mott Co 368 V. Slaughter 131 V. Stanhope 299 V. Tate 19 V. United States 671 V. Van Court 19, 20 V. Wells 324 V. Wil'iams 374 Co. V. Rice 200 Clarke v. Dickson 633, 649 V. Hutchins 278, 595 V. Leslie 24 V. Spence 275 V. Westrope 175 Clarksville Land Co. v. Harri- mau 661 Clarkson v. Stevens 275 Clary v. Frayer 373 Clason v. Bailev 101, 112, 113 Clay V. Allen..". 664 v. East Tenn. R. R. Co 145 V. Rickets 5 V. Yates 54, 593 Clayton v. Andrews 53 V. Brown 364 V. Hester 324 Claytor v. Anthony 400 Clearwater v. Meredith 193 Cleave v. King 614 Cleaveland v. Richardson 631 Cleaver v. Ogle 361 Clem V. Newcastle, etc.. R. R. Co. 627 Clement v. Cozart 641 Clementson v. Grand Trunk Ry. Co 541 Clerk V. Clerk 29 Clevenger v. Lewis 21S Cleveland v. Pearl 675 xl Table of Cases. [References are to sections.] Cleveland v. Sterntt 600 V. Williams 2G4, 269 ilach. Works v. Lang.. 326, 339 EoUing Mill v. Rhodes. .189, 460 467 Clews V. Friedman 438 V. Jamieson 664 Clifford V. Watts 660, 661 Cloke V. Shafrotli 156 C'lopton V. Bolton 507 Clore V. Robinson 548 Close V. Crossland 218, 221, 608 615 V. Hodges 135 Clothier v. Sigle 48 Clough V. London, etc., Ry. Co. . 637 648 Clow V. Woods 391 Clowes V. Brooke 22 Clugas V. Penahina 670, 675 Clute V. Fitch 385 V. Steele 381 Clydebank Co. v. Yzquierdo j Castaneda 487 Clyde Cycle t'o. v. Hargreaves . . 22 23 Coale V. Harrington 373 Coates, J. A. & Sons v. Buck. . . 5 V. Cook 655 v. Early 654 V. Railton 530 Cobb V. Billings 669 V. Cole 656 V. Glenn Lumber Co 109 V. Haskell 372 V. Tufts 304 Coburn v. Pickering 382 V. Raymond 30 Cocliran v. Ripy 370, 417, 434 V. Tatum ." 593 Cochrane v. Gilbert 371 V. Moore 260 Cockburn v. Ashland Lumber Co. 599 Cocke V. Campbell 445 ■ V. Chapman 357 Cocking V. Ward 681 Coekrell v. Thompson 664 Cockrill V. Cockrill 32, 36 Coddington v. Bay 620 V. Goddard . ' 101, 104, 116 Coe V. Tough 107, 108 Coffey V. Quebec Bank 156 Coffin V. Bradbury 76 Coflfman v. Hampton 70 Cogent V. Gibson 602 Coghill V. Boring 649 Cohen v. Parish 041 V. Pemherton 493 V. Schneider 327, 643 Cohn V. Ammidown 218, 220 v. Heimbauch 678 Cohoon V. Fisher 646, 648 Colt V. Sutton 673 Colbath V. Hoefer 421 Colbert v. Baetjer 362 V. Sutton 361 Colchord JIaeli. Co., W. R. v. Loy-Wilson Foundry Co.. 232, 235 Colcock V. Goode 218 Colcord V. McDonald 333 Cold Blast Transportation Co. v. Kansas City Bolt Co 168, 464 Cole V. Berry 326 V. Carter 200 V. Cole 371 V. Coles 662 V. Howe 327 V. Kerr 135 V. Mann 326, 329 V. Northwestern Bank.. 317, 318 319, 323 V. Propst 340 V. Smith 628 V. Swanston 57.5 Bros. V. Williams 63-t Cole's Case 457 Coleman v. Eyre 58 V. Gibson 77 V. Riches 419 V. Rowe 507 Colgate V. Pennsylvania Co 285 Collateral Loan Co. v. Sal- linger 317 College :\IilI Co. v. Fidler 464 Collender v. Marshall. . 326, 327, 336 Colles V. Swensberg 271, 272 Collins, Ex parte 174 V. Brush 38.) V. Delaporte 589 V. Houston 326 V. Jackson 628 V. Merrell 681 V. Myers [] 388 V. Ralli 316 V. Taggart 364 V. Tigner 203, 212, 608 V. Union Transportation Co. 426 V. "Wilhoit 327, 378 Collyer v. Isaacs 138 V. Moulton 589 Colonial Bank v. Whinney 67 Ins. Co. V. Adelaide Ins. Co. 277 302, 460, 600 Colson V. Meyers 679 Colt V. Clapp 58 V. Ives 360 V. Owens 451 Colton V. Raymond 67 Columbia Baiik v. Plaldeman 679 Carriage Co. v. Hntch 681 Rolling Co. V. Beckett Foun- dry Co 271, 272 Table of Cases. xli [Keferences are to seotiona.] Columbia Wire Co. v. Freeman Wire Co 168, 464 Columbian Iron Works v. Doug- las 180, 608 Columbus Buggy Co. v. Turley. . 329 Colvin V. Weedman 190, 456 V. Williams 67, 71 Colwell V. Keystone Iron Co ... . 269 Comaita v. Kyle 381 Combs V. Bateman . . 98 Comer v. Baldwin 106 V. Cunningham 324 Commander v. Brazil 26 Commercial Bank v. Armsby. . . 292 425, 437 V. Chicago, etc., Ky. Co. . 290, 424 V. Gillette 156, 269 V. Hurt 407, 421 V. I.^e 421 V. Pfeifl'er 285, 291, 424 V. Pirie 620 Nat. Bank v. Bemis 428, 437 V. Heilbronner 317 Publishing Co. v. Campbell Printing Co 579 Commonwealth v. Adair 280 V. Devlin 343 V. Fleming 279 V. Hess 264 V. Hugo 280 V. Kennedy 673 V. Peaslee 675 V. Read Phosphate Co 673 Comstock V. Bechtel 640 V. Price 555, 562 V. Rayford 377 V. Scales 135 Conant v. National State Bank. 239 Conawingo Co. v. Cunningham . . 452 Conboy v. Howe 25 Conder v. HoUeman 327 Condon v. Walker 670 Cones' V. The United States 676 Confederation Life Assn. v. Labatt 615 Congar v. Chamberlain 211 Congdon v. Kendall 280 Conklin v. Conway 679 Conkling v. Standard Oil Co 201 203 Conlan v. Roemer 628 Conlev V. Canadian Pac. R. R. Co 285 V. Nailor 37 Conn V. Coburn 24 V. Reed, Dawson & Co 280 Connolly v. Union Pipe Co 672 Conner v. Henderson 649 V. Long 662 Connerat v. Goldsmith 48 Conner-sville v. Wadleigh 207 Connolly V. Hull 25 Connor v. Black 664, 679 Conrad v. Atlantic Ins. Co 383 V. Fisher . ...417, 425, 507, 524 V. Kelley 326 V. Lane 26 V. Smith 387 V. Wapples 674 Conroe v. Birdsall 26 Consolidated Milling Co. v. Fogo. 637 Constantia, Tlie 522 Continental Wall Paper Co. v. Voight 672 Converse & Co. v. McKee 396 Conway v. Edwards 381 V. Garden City Co 299 V. Smith Co 452 Coody v. Gress Lumber Co 62 Cook v. Andrews 660 V. Bagnell Timber Co 37 v. Foley 177 v. Forker 667 v. Gilman 649 V. Gray 208, 452 v. Gross 272, 273 V. Mann 359 V. Rome Brick Co 672, 673 V. Sterling Electric Co 67 V. Van Home 403 Cooke V. Clayworth 42 v. Millard 55, 75, 88 V. Nathan 629 Cool V. Cunningham 168, 464 V. Lumber Co 62 V. Peters Box, etc., Co 72 Cooley V. Gillan 326 V. Perrine 445 Coolidge V. Ayers 131 V. Heneky 621 V. Melvin 382 V. Rhodes 628 Coombe v. Carter 138 Coombs V. Collins 365 Coon V. Rigden 112 Cooney v. Lincoln 33 Cooper, Ex parte 528, 534 V. Bill 88, 513, 514 V. Chicago Organ Co 304 V. Chitty 662 V. Gleghorn 215 V. Lansing Wheel Co... 168, 464 V. Lovering 628 V. Macdonald 46 V. Payne 239 V. Shuttleworth 175, 176 V. Smith Ill V. State 21 V. Thomason 106 Mfg. Co. V. Ferguson 673 Coors V. Reagan 327 Coover v. Davenport 663 V. Johnson 328 xlii Table or Cases. [Eeferenoes are to sections.] Copas V. Anglo-American Pro- vision Co 232, 242 Cope V. Rowlands 669 Copenrath v. Kienby 33 Copeland v. Boston Dairy Co . . . 669 Copland v. Bosquet 342 Coppell V. Hall 674 Corbett v. Underwood 664 V. Wolford 71, 77, 80 Corbin v. Wachhorst 675 Corbit V. Smith 33 Cordes v. ililler 676 Corgan v. Frew 366 Cork Distilleries Co. v. Railway Co 278 Corkling v. Massey 181 Corn Exchange Bank v. Ameri- can Dock Co 417 Corning v. Abbott 670 V. Colt 278 V. Loomis 107 V. Records 382 Cornwall v. Hawkins 26 V. Henson 467, 544 V. Mix 365 Cory V. Barnes 502 Corryolles v. Jlossy 296 Cort V. Ambergate, etc., Ey. Co. 586 Cortland Mfg. Co. v. Piatt. . 636, 648 Wagon Co. v. Sharvy 376 CosgTOve V. Bennett 236, 238, 239 Costigan v. Hawkins 218 Cotten V. ilcKenzie GSl Cottcrill V. Stevens 76, 98 Cotton :\Iills V. \\ei\ 440 Cottrell V. Carter 324 V. Merchants' Bank ...327, 336 Cottrill V. Krum 648 Couch V. iJontgomery 365 Couillard v. .Johnson 90 Coulter V. Clark 628 V. :\Iinion 628 Courtney v. Knabe & Co. IMfg. Co 636 Courtright v. Leonard 156 Courton V. Chapman 70, 295, 483 Couturier v. Hastie 156 Coventry v. Gladstone 526 V. Great Eastern Ey. Co. . . 418 420 Coverlv V. Terminal Warehouse Co. '. 299 Covin V. Hill 315, 321 Covington v. Threadgill 668, 669 681 Cowan V. Adams 72 V. Milbourn 675 V. Singer Mfg. Co 336, 579 Cowasjee v. Thompson 532 Cowdy V. Thomas 209 Cowles V. Whitman Cox V. Anderson 251, 253, V. Bruce v. Central Vermont R. R. . . V. Jackson 261, V. Prentice Shoe Co. V. Adams. .567, 620, Cowley V. Smyth Coyle V. Baum Crabb v. State Crabtree v. Kile V. Mes^^ersmith Cragin v. Fowler V. O'Connell Cragun v. Todd 278, Craig V. Godfrov V. Sibbett . " V. Van Bebber 19, Craig's Admr.'s Appeal Cramond, Ee Cranberry v. Hawpe Crane v. Crane 168, V. London Dock Co V. Pearson V. Powell . 71, V. Timberlake V. Wilson Cranson v. Goss 663, 665, Crater v. Binninger Craven v. Ryder 283, Craver v. Hornburg Crawcour v. Salter Crawford v. Averj' V. Beard V. Burton V. Davis V. Kirksey V. jMail & Express Co V. Scovell V. Smith v. Spencer V. Wolf Crawshay v. Thornton Creagh v. Savage V. Tunstall Cream City Hat Co. v. Tollinger, City Glass Co. v. Fried- lander 475. 476, Creamery Mfg. Co. v. Tagley. . . . Creekniore v. Baxter V. Chitwood Creenshaw v. Slve Crefeld :\lills v. 'Goddard Creighton v. Comstock Cresinger v. Welch 19, Cresswell Co. v. Martindale .... Criley v. Vasel Crine v. Tifts Crinkley v. Egerton. 602 278 419 426 386 656 636 632 614 279 608 585 605 562 .30.5 115 435 24 391 662 615 464 347 273 72 37 S 189 666 013 558 608 324 593 642 368 391 354 191 33 164 664 177 421 354 34 636 483 327 33 670 201 672 464 20 189 4C7 378 135 135. Table of Cases. xliii [References are to sections.] Crippen v. Fletcher 401 Critc!ifiel,d v. Eastorday 35 Crocker v. Gullifer 270 Crocker-Wheeler Co. v. Varick Realty Co 487 Electric Co. v. Johns-Pratt Co 208 Crockett v. Scribner 55 Crofoot V. Bennett 269 Croft V. Jenuintcs 651 Croly V. Pollard 219 Crompton v. Beach 571 V. Pratt 284, 331 & Knowles Works v. Hoff- man 235 Cromwell v. Wilkinson 189, 592 Cronk v. Cole 628 Croninger v. Crocker. . .278, 455, 477 V. Paige 608 Crook V. Cowan 279 Crookshank v. Burrell 563 Crosby v. Emerson 203 Hardwood Co. v. Trester... 99 Cross V. Eglin 464 V. Gardner 196 V. 0'Donnell..74, 76, 81, 89, 539 V. Peters 637 V. State 280 Crossen v. Murphy 649 Crossman v. Johnson 210 V. Universal Rubber Co ... . 648 Crouch V. Carrier 360 Crowley v. Irvin 391 Crown Cycle Co. v. Brown 648 Croyle v. Moses 631 Croze V. St. Mary's Mineral Land Co 158 Cruess v. Fessler 628 Crug V. Gorham 264 Cruikshank v. Cogswell 366 Crumbaugh v. Kugler 641 Crummey v. Raudenbush . . . 495, 505 507, 516, 522 Crutcher v. Elliott 614 Crymble v. Mulvaney 359 Crvstal Flouring Co. v. Butter- iield 109 Cud V. Rutter 602 Cudworth v. Scott: 135 Cuff V. Penn 121 Cullum V. Wagstaff 190, 456 Cumberland Banking Co. v. Maryport Iron Co 138 Nat. Bank v. Baker 135 Cummings v. Arnold 118, 121 V. Griggs 370 V. Henry 38 V. McCuUough 354 Cummins v. Ennis 203 Cundy v. Lindsay 635 Cunliffe v. Harrison 278,461 Cunningham V. Ashbrook. 75, 262, 269 V. Brown 167 V. C. R. Pease Co 632 V. Cureton 339 V. Dunn 601 V. Hamilton 366 V. Neville 391 V. Trevitt 327 V. Williams 106, 113 Curd V. Miller's Exrs 400 Curi-an v. Birdsall 131 V. Downs 670 Currey, Re 46 Currie v. Anderson 77 Currier v. linapp 284, 331 Curtin v. Isaacsen 402 V. Patton . . . .■ 26 Curtis V. Aspiuwall 293 V. Gibney 4T57 V. Hannay 008,610 V. Portsmouth 101 Curtiss V. Albee 053 V. McDougal 17 Curwen v. Quill 239 Cusack v. Robinson 70, 86, 88 Gushing v. Breed 157 Cushman v. Thaj'er Mfg. Co 602 Cussons V. Skinner 495 Cutler V. Gilbreth 608 V. Pope 62 Cutter V. Powell 448 Cutting V. Jackson 382 V. Whittemore 332 D. . Dabovich v. Emerio 615 Dacosta v. Davis 126 Dady v. Condit 633 Dailey v. Green 483, 497 V. Hollis 299 Co. V. Clark Can Co 168, 464 Dakins v. Wagner 452 Dakota Stock Co. v. Price 450 Dale, Re 661 V. Arnold 370 Daley v. People's Building Assn. 591 Dallavo v. Richardson 99 Dalton V. Bentley COO V. Bunn 490 V. Midland, etc., Ry. Co ... . 44 V. Thurston 637 Dame v. Baldwin 347 Damron v. Commonwealth 26 Dana v. Fiedler 599 V. Hancock 121 Danby v. Sharp 362 Dando v. Foulds 270, 27.'? Danforth v Walker 76, 589 Daniel v. Bowles 663 V. Hannah 75, 86, 88, 167 V. Morrison 370 xliv Table of Cases. [References are to sections.] Daniels v. Bailey 62 V. Nelson 399 V. Palmer 522 V. Rogers 105 Dann v. Luke 300 Dannat v. Fuller 193 Dannemiller V. Kirkpatrick. . 278, 280 Banner v. Fort Worth Implement Co 613 lyAquila v. Lambert 517 Darby v. Boucher 24 V. Clabanne 34 V. Hall 502 V. Kroell 633 Darling v. Gumming 109, 110 D'Armand v. Sheriff 371 Da Roach Mfg. Co. v. Tutweiler Coal Co 20,-, Dart V. Ensign 426 V. Stewart 042 Darvill v. Terry 64U Daugherty v. Fowler 346 Dauler v. Hartley 679 Davenport v. Adler & Co 371 Bank v. Homeyer 430 David V. Ryan 676 Davidson v. Young 26 Davis V. Bronson 589 V. Columbia Coal Mining Co. 457 V. Davis 627 V. Dudley 20 V. Grand Rapids, etc., Co.. 585 587 V. Hartlerode 608 V. HolbroQk 679 V. Iverson 491, Ii07 v. Koenig 595 V. McFarlane 61 V. McWIiiittT 6.i7 V. 'Meyer & Co 357 V. iloore 70, 99 V. Old Colony R. R. Co 49 V. Osgood 339 V. Phillips 98 V. Pryor 663 V. Reisinger 031 V. Robinson 491, 607 V. School Furniture Co 599 V. Shepherd 13.i V. Shields 104, 1 12 V. Smith 218 V. Snider 654 V. Turner 400, 402 V. Zimmerman 378 Calyx Drill Co. v. Mallory. . 215 236 Ore Co. V. Atlanta Guano Co 548, 553 Davison v. Von Lingen 181 Davy V. Bangs 664 Dawe V. Morris 627, 628, 630, Dawes v. Cope V. Peck Dawson v. Burrus & Williams . . V. Collis 251, V. Graliam V. Helnics V. Pennaman Day V. Bassett 2S4, \. Cooley V. Cross V. Gravel 264, 20.5, V. Lown V. ^McAllister V. Mapes-Reeve Co. 225, 230. V. Pool 207, 489, V. Raguet Leather Co. v. ilichig.an Lumber Co 215, Dayton v. Hoogland. . . .210, 250. 252, 445, V. Kidder Deal V. Maxwell Dean v. Connelly V. Driggs 407, V. Emerson V. King V. Morey V. Yates Dearborn v. Raysor V. Taylor Foundry Co. v. Augustine . . Deare v. Soutten Deaton v. Lawson 669, 079, Deatz V. United States Deaver v. Bennett De Bardeleben v. Beekman De Baun v. Brand Debenham v. Mellon Decan v. Shipper Decell V. Lewenthal 23, Deck V. Feld Decker v. Fredericks V. Furniss Dederick v. Wolfe 336, 571, Dedman ^ . Earle Deep River Bank's Appeal Deere v. Lewis V. Wyland 072, Deere Co. v. C-iorman. . . .* & Co. V. Xeedles Deering v. Chapman De Graff v. Thompson Dehority v. Paxton 08, S5, Deierling v. Sloop Delamater v. Chappell Delaney v. Wallis De Lassalle v. Guildford. 198, 209, Delavina v. Hill 633 037 3.S5 426 054 008 028 19 008 331 042 404 209 032 007 4!I0 008 252 476 251 4S8 031 55 021 420 681 419 207 035 325 273 072 48 030 218 679 :i:i3 2119 48 V,So 25 172 445 202 579 340 112 596 073 566 31 ;s (i>^l 145 87 oi:4 483 347 215 675 Table of Cases. xlv [References are to sections.] Delaware, etc., H. C. Co. v. Mitchell 599 De Lazardi v. Hewitt 317 De Leonis v. Walsh 679 Delgado v. Wilbur 407 De Loach Milling Co. v. Tut- weiler Coal Co 489 Dellinger v. Gillespie 654 Delone v. Hull 648 Delta Bag Co. v. Kearns 558 Demens v. Le Moyne 472 Demeritt v. Mile.s 651 Deming v. Chase 445 V. Darling 203, 204, 628 V. Foster 230 V. State 680 De Montague v. Bacharach 71 Dempsey v. Gardner 374, 376, 428 454 V. Lawson 593 Denholm v. Halmoe 419 Denison v. Ralphson 196 Dennehy v. McXulta 672 Dennett v. Dennett 35 Dennis v. Stoughton 451 Densmore v. Tomer 380 Commission Co. v. Shong. . . 403 Dent V. Ferguson 678 Denton v. Mclnnis 189 Depew V. Peck Hardware Co. . . . 205 Derby v. Johnson 589 Derbyshire's Estate 275 De Roo V. Foster 26 Derosia v. Winona, etc., R. Co.. 451 Derry v. Peek 608, 624, 632 De St. Germain v. Wind 336 De Silver, Estate of 29 Des Farges v. Pugh 637 Detroit Shipbuilding Co. v. Corn- stock 215 Dettra v. Kestner 650 Deutsch V. Dunham 265 V. Pratt 172 Devane v. Fennell 269 Devaux v. Conolly 600 Devine v. Edwards 280, 656 V. Harkness 299 V. Warner 90, 91, 108, 109 Devlin v. O'Neill 329 Devonshire v. Gauthreaux 371 De Vries v. Crofoot 30 Dewart v. Clement 391 Dewes Brewery Co. v. Merritt. . . 326 Dewey v. Allgire 31, 33, 35 V. Erie Borough 271, 272 T. Moyer 642 V. Thrall 399 De Witt V. Berry 239 V. Prescott 515 Dexter V. Hall 29 V. Norton 661 Dexter v. Parkins 366 Deyo V. Hammond 169, 175 De Zouche v. Garrison ., . 421 Dial V. Grain 119 V. Wood 24 Diamond Co. v. Todd 602 Glue Co. v. U. S. Glue Co.. 672 673 Dias v. Chickering 318 Dibble v. Corbett 500 Dickens v. Williams 203 Dickenson v. Gapp 213 Dickermau v. Northern Trust Co. 672 V. Ray 327 Dickey v. Grant 595 v. Waldo 135 Dickinson v. Atkins 630 V. Gay 246, 655 V. Wright 106 Dickson v. Chaffe 421 Diebold Safe Co. v. Huston.. 205, 215 Dieckman v. Young 98, Diem v. Koblitz. . .507, 522, 539, 551' 577, 662 Dierson v. Petersmeyer. . .55, 73, 80 85, 94 Dietz' Assignee v. Suteliffe 648 Dike V. -Reitlinger 188 Dilburn v. Youngblood 143, 602 Dilk V. Keighley 23 Dill V. Bowen. .' 19 V. Mumf ord 548 V. O'Ferrell 649 Dillard v. Brenner 664 Dillaway v. Alden 664 Dillin V. KJncaid 378 Dillman v. Nadelhoflfer 641 Dillon V. Allen 668 V. Anderson 589 Dingle v. Hare 445 Dinglev v. Greene 177 v.'Oler 190, 456 Dinkier v. Potts 636 Dinwiddie v. Kelley 638 Dion V. St. .Tohn Baptiste Soc. 169 Disnev v. Furness 452 Distilling Co. V. Nutt 675 Ditman v. Raule 642 Diversy v. Kellogg 278, 483 Divine v. JlcCormick 241 Dixen v. Baldwen 530 Dixon V. Blondin 329 V. Duke 72 V. Fletcher 278, 462 V. Hurrell 48 V. Olmstead 678 V. Yates. . .94, 258, 264, 509, 522 534, 558 Doak V. Brubaker 381 Doane v. Dunham . . 306, 474, 476, 497 Dock V. Dock 602 slvi Table of Cases. [References are to sections.] Dodd V. Bowles Dodge V. Jones V. Waterman Dodsley v. Varley 86, 91, Dodsoii V. Harris Dodsworth v. Iron Works Doherty v. Hill 105, V. Merchant's Xat. Bank... Bokken v. Page Dolan V. Brooks V. Rodgers 101, Dole V. Olmstead Doliff V, Robbins Doll V, Noble Doloret v. Rothschild Dolson V. Hope Domestic Sewing Machine Co. v. Arthurbiiltz Donaldson v. Farwell 620, Donnelly v. Mitchell 273, Donovan v. Daiber V. Schoenhofen Brewing Co. V. ^^'ard Dooley v. .Tack.son V. Pea«e Doolin V. Ward Doran v. Smith Doremus v. Howard ". . . . Dorman v. Weakley Dorr V. Cory V. Fisher Dorsey v. Banks V. Pike V. Watkins Dosh V. United States Express Co. Doty V. Wilder Doucet V. Richardson Dougherty v. Catlett y. Powe Bros. V. Central Bank Doughty V. Manhattan Brass Co. Y. Miller Douglas V. People's Bank. . . .285, V. Sliumway Axe Mfg. Co. V. Gardner. . . . Douglass V. Moses V. Spears Dounce v. Dow 230, Dow V. Sanborn V. Wortlien Dowagiac Mfg. Co. v. Gibson .... V. Mahon 239, 566, V. Schroeder Dowdell V. Empire Furniture Co. Dowling V. Betjemann 143, V. McKenney 56, Downer v. Thompson 278, Downham v. Holloway Downing v. Dearborn Paper Co., Re V. Ringer 326 379 593 514 666 483 106 423 621 48 661 157 423 191 143 669 332 037 338 664 108 20 679 397 299 27 501 636 628 608 327 90 234 279 115 382 119 29 577 112 051 424 516 607 211 113 489 637 98 646 571 654 579 602 69 401 32 631 272 66S Downing v. Stone 14 Downs V. Marsh 278 Dows V. Ekstrone 157 V. Kidder 421 V. Glaspel 664 V. National Exchange Bank. 289 437 Doyle V. Parish 207, 210, 234 Drake, Ex parte 4 V. Holbrook 613 r. Plowell 02 V. Seaman 103 V. Siebold 672 V. Vorse 464 Draper v. Pattina 101, 112 Dresser v. Ajnsworth 218 Drew V. Claggett 592 V. Edmunds 200, 205, 208 V. Xunn 34 Drews v. Ann River Logging Co. 164 Drexel v. Pease 286 Driggs V. Brush 98 Drinkall v. :\Ioviu3 Bank 678 Drovers' Bank v. Albany Bank . . 108 Drude v. Curtis 15, 17, 19 Drummond v. Van Ingen. . . .226, 234 248, 250, 257, 055 Drury v. Defontaine 665, 666 V. Young 106, 112 Dubois V. Spinks 451 Dubose V. Wheddon 21 Dubowski V. Goldstein 681 Ducett V. Wolf 106 Ducker v. Whitson 35 Dudley v. Abner 324 v. Chicago, etc., R. R 479 V. Collier 672 V. Odom 299 Duecker v. Goeres 615 Duffield V. Horton 662 Duke V. Shackleford 579 Dukes V. Nelson 244 V. Spangler 641 Dumont v. Duf ore 678 Dunbar v. Johnson 681 Duncan v. Charles 507 V. Stone ■. . . 326 v. Topham 452 Duncuft V. Albrecht 67,602 Dundee ilortgage & Trust Invest- ment Co. V. Nixon 672 Dunham v. Hartman 114, 115 V. H. D. Williams Cooperage Co 472 V. New Britain 661 V. Pettee 448, 575 V. St. Croix Mfg. Co 169 Dunkart v. Rineheart 156, 158 Dunkin v. Hodge 678 Dunkirk Colliery Co. v. Lever. . . 583 Dunlap v. Bournonville 391 Table or Cases. xlvii [EeferenoeB are to sectians.] Duulop V. Lambert 280, 426 v. Mercer 326, 327, 668, 67.2 Dunn V. Amos 42 V. Drummond 679 V. State 279 Dunpliy V. Pyan 71 Dunsworth v. Wood Machine Co. 593 Duntz V. Grainger Brewing Co . . . 327 Duplex Printing Press Co. v. (.'lipper Publis'liing Co 326 Dupont Co., E. I. V. John Shields Const. Go 346 Uurant v. Burt 664 V. Rhener 655 Durgin v. Dyer 668, 669 Durgj' Cement Co. v. O'Brien. . . . 533 Durkee v. Mahoney 399 ■V. Moses -675 V. Powell 65 Durkin v. Cobleigh 215 Diirnf ord v. Syndics of Brooks ... 371 Durrell v. Haley 637 Dushane v. Benedict 233, 614 Dustan v. MoAiidrew. . .'545, 555, 562 •563 Duthie V. Hilton 162 Dutton V. Solomonson. .278, 512, 593 Duval V. Mowjy '649 V. Wellman . ^. 680 Duvall v. Ferwerda 171 Dwiggins v. Clark 562 Dwight V. Eek<^rt 190, 280, 457 Ihvinel v. Howard 467 Dwver v. Gulf 2ff5 Dj'as V. Stafford 112 Dyckman v. Sevatson 571 Dyer v. Great Northern P. P. Co. 426 T. Homer 651 V. Pearson 316 V. Taylor 621 V. Thoretad 326 V. Winston 103, 113 Dykers v. Townsend 105 Eagan v. iuby 1^5 "Eagle Iron WorTcs v. T)es Moines Py. Co 608 JEagiesfield v. Uarquis of Xondon- derry 629 Earle v. Peale 24 V. Peed 21 V. Pobinson 579 V. Thomas 396 Earnshaw v. Whittemore 591 East V. Cayuga Lake Ice Co. 168, 464 V. Wood ■.. .298 Eastern Building Assn. v. Snyder. 671 672 Torge Co. v. Corbin 467 Eastern Granite Roofing Co. v. Chapman 649 R. P. Co. V. Benedict 98 Eastland t. Sparks 593 Easton v. Jones 467 V. Montgomery 113 V. Worthington '347 V. Wostenholm 278, 283 Eastwood V. Kcnyon 71 Eaton 452 42 S 473 250 48 13 20 248 420 94 329 son 23 48 302 2011 145 314 177 451 612 679 208 426 36 495 242 004 lP,.i 641 71 232 343 327 372 404 430 614 304 to sections.] Globe ililling Co. v. Minneapolis Elev. Co 346 Tobacco Warehouse Co. v. Leach 072 Gloucester Glue Co. v. Russia Ce- ment Co 600, 602 Glover v. Ott 22, 23 V. Hargadine-McKii±rick Co. 621 V. Walker 651 Gluokstein v. Barnes 028 Gobble V. O'Connor 299 Godchaux v. ilulford 358 Goddard v. Binney 55 V. Demerritt 94 Hill & Co. V. Weil 391 Godfrey v, ililler 621 Godkin v. Weber 77' Godman v. Aleixsel 604 Godts v. Rose 344 CJodwin V. Murchison Nat. Bank 141 Goetter v. Picket 654 Goetz V. Bank of Kansas City. . 435 GofF V. Pacific Coast SS. Co 189 Gold Mining Co. v. National Bank 603, 608 Goldbeck v. Kensington Bank... 59 Golilie V. Harper 304 Goldberg; Re 662 V. Feiga 679 Golding; Kx; parte 525, 538, 558 (Toldman v. Rosenberg 161 Gold Ridge Mining Co. v. Tall- madge 235 Goidsbury v. ^lay 370- Goldsmith v. Bryant 343, 340 Goldstone v. ilerchants' Ice Co. . 316 (folightly V. State 279 GoUober v. Martin 621 Gompertz v, Bartlett 600 V. Denton 603 Gontier v. Thomas 371 Ooofh V. Holmes 67, 86 Goodale v. :\Iiildaugh 632 Goode V. Hawkins 299 Goodell V. Fairbrother 320 Goodenow v. Tyler 317 Goodgame v. Sanders 324 Goodisson v, Nunn 467 Goodman v. Griffiths 103 V. Kennedy 27-t Goodnow v: Empire Lumber Co. 20 Goodrich w Van Nortwick 101 Ooodsell V. "Myers 20 Goodwin v. Clark 681 V. Goodwin 37-'' V. Horn 630 V. iTass. Loan & Trust Co. 620 650 V. Scannell 418 Table of Cases. Iv [References are to sections.] Goodwine v. CadVallader 85 Goodwyn v. Goodwyn 364 V. Priohard 307 Gookin v. Graham 218 Goom V. AHalo 116 Gordon v. Butler 628 V. Gollett 101 V. McC;u-ty 650 V. Norris 562, 564 V. Parmelee 204 V. Waterous ' 476 Gore V. Gibson 38, 40, 41 Gorman v. Brossard. .56, 69, 87, 88 98 Gormely v. Gymnastic Assn.... 629 Gorrissen v. Perrin 188 Gorsiith V. Butterfield 669 Gosch, Ee 327 Goss V. Dysant 615 V. Lord Xugent 118, 119, 122 Goss Printing Co. v. Jordan .... 270 Gossler v. Eagle Sugar Refinery. 243 Gottfried v. lliller 131 Gottschalk v. Kircher 631 Goudy V. Werbe 640 Gough V. Williamson 108 Gould V. Bourgeois 218, 219 V. Stein.. 205, 208, 22.5, 250, 252 253 V. Ward 374 Goulds V. Brophy 238 Governments Stock & Investment Co. V. Manilla Ry. Co 138 Gower v. Sterner 655 Grabenlieimer v. Blum 646 Gradle v. Warner 106 Graff V. Fitch 262, 269, 366 V. Foster 251 V. Osborne 488 Graffenstein v. Epstein 631 Grafton v. Cummings 102, 105 Graham v. Eiszner 215 V. MeCreary 391 V. Thompson 634 Grairtv Canal Co. v. Sisk 135 Grand 'Ave. Hotel Co. v. Wharton. 236 Rapids Lumber Co. v. Inland. 269 Tower Co. v. Phillips 599 Grange Co. v. Farmers' Mill Co. 278 Granger v. Dacre 448 Grant v. Fletcher 116 V. Grant 629 The Joseph 419 V. Levan 106 V. Lewis 403 V. McGrath 666, 667 V. Milam 74 V. Norway 419 V. United States 306 Shoe Co., Re 662 Grantham v. Ilawley 133, 134 Graves v. .Johnson 674, v. Legg 182, 187, 190, Gray v. Agnew V. Alabama Bank V. Booth V. Central E. R. Co V. Chase V. Consolidated Ice Co.. 476, V. Davis 77j 92, V. Meek V. Sims V. Smith 495, V. Sullivan V. Walton Co., G. A. V. Taylor Bros. Co. Grayson County Bank v. Nash- ville, etc., Ry 283, Greacen v. Poehlman Great v. Gile Northern Ry. Co. v. Ka- sischke Northern R. R. Co. v. Wit- ham 168, Western Mfg. Co., Re Western R. Co. v. Crouch . . Greathouse v. Bro\\ n Greaves v. Ashlin 500, V. Ilepke Greely v. Bartlett Green v. Armstrong V. Baverstock V. Brookins V. Bryant V. Collins V. Edgar V. Green V. Greenbank 26, V. Hall V. Ijewis V. Maloney V. North Buffalo Township. V. Rowland V. Sinker V. Sperry V. Van Buskirk Bay National Bank v. Dear- born Greenbaum v. Burnes V. Megibben 417, Greene v. Bateman V. Clark V. Dingley V. Godfrey V. Haley V. Lewis 167, Greenberg v. Davidson Greenbrier Lumber Co. v. Ward. Greenfield's Estate Greenhalgh v. Brindley Greenleaf v. Gallagher 279, Greenough v. Balch 675 467 317 191 579 191 662 497 483 507 676 586 381 450 339 289 271 269 654 464 326 478 370 544 265 317 62 298 07 628 675 495 19 27 275 126 654 654 374 579 27 397 428 434 434 172 426 451 666 592 171 67 451 654 631 566 668 Ivi Table of Cases. [References are to sections.] Greenwald v. Tinsley 571 Greenway v. Gaither 585 Greenwell v. Nash 621 Greenwood v. Corbin 401 V. Law 67 Grocery Co. v. Canadian Elevator Co. 283, 285, 289, 291 Greer v. Church 325 Gregg, Ee 662 V. Page Belting Co 236 Gregory v. Lee 21 V. Morris 515 V. Wendell 425, 664 V. Wilson 668 Gregson v. Ruck 116 Grier v. Simpson 566 Griffin v. Farrier 628 Gribben v. Maxwell 30, 33 Gribbin v. Atkinson 660 Grice v. Richardson 502, 507, 662 Grieb v. Cole 112, 238 Griel v. Lomax 106 Grier v. Simpson 5G0 Griffin v, Farrier (>-2S V. Lumber Co 634 V. Nitcher 651 Griffith V. Frellsen 371 V. Ingledew 282, 426 V. Strand 634 V. Wells 669 Griffitlis V. Tenv .406, 502, 507, 524 Cycle Co. v. Humber. . . 108, 112 Grigsby v. Stajileton 631 Grimes v. Davis 370 V. Hamilton County 101 V. Van Vcohton 89 Grimoldby v. Wells 480, 497 Griswold v. Nichols 403 Groff V. Belche 265 V. I'Vioper 361 Grose v. Hennessey 221, 615 Gross V. Drager ' 654 V. Heckert 55 V. .Tordan 336, 339 »-. Kierski 218, 221, 615 Grotenkemper v. Aehtermyer . . . . 2ni; Grove v. Nevill 26, 27 Grubbs v. Greer SO.i Gruman v. Smith 664 Grymes v. Sanders 649 Guarantee Co. v. Mechanics', etc., Co 467 Guernsey v. Carver 500b V. West Coast Lumber Co . . 467 Guerreiro v. Peile 317 Guhy V. Nichols & Shepherd Co. 239 491 Guiee v. Sanders 371 Guiding Star, The 419 Guilford v. Smith 530 Gulf, etc., Ry. Co. v. Hefley.... V. Winton Gulick V. Ward V. Webb GuUich V. Alford Gunderson v. Richardson Gunn V. Bolckow V. White Sewing Mach. Co. . Gunther v. Atwell 251, 252, Gurney v. Atlantic Ry. Co.. 249, V. Behrend 292, V, Womersley Gurwell v. ^lorris 73, Gustafson v. Rustemeyer Gustine v. Phillips Gutheil V. Goodrich Guthing V. Lynn Guthman v. Parker Guthrie v, Morris Gutlon V. Marcus Guyton v. Terrell Gwathney v. Cason Gwillim V. Daniell < ! winn v, Simes Gwycr v. Figgins Gwyn V. Richmond, etc., R. Co. . Gwynne v. Hitchner 663 168 299 299 592 666 502 673 253 250 437 600 119 613 522 648 108 21 579 641 115 404 667 641 525 191 H. Haas V. Citizens' Bank 435 Haase v. ilitcliell 567,649 Habeler v. Rogers 555, 562 Habricht v. Alexander's Exrs. . 674 Hacker v. Australian, etc., Co. . 467 V. Munroe 637 Hackett v. State 464 Hadcock v. Osmer 632 Hadley v. Bordo 215 V. Clinton ('o\inty 230 & TIawkins v. Clinton County Importing Co 631 Haed v. Tatersall 270 Haegerstrand v. Anne Thomas SS. Co 191 Hagany v. Herbert 361 Hngee v. Grossman 633 Ha.CTerman \ . Buchanan 642 Haggerty v. Xixon 651 TTagins v. Combs 167, 269, 280 Hahn v. Fredericks 158, 164 Haines' Adm. v. Tarrant 21, 24 Halderman v. Stillington 37S Hale v. Gerrish 20 V. Kobbert 33 V. ^Tetropolitan, etc., Co. . . . 352 V. Milwaukee Dock Co. .407, 420 V. Philbrick 634, 638 V. Rawson 129, 188 V. Sherwood 679 Halff V. Allwyn 531 Table of Cases. Ivii [References are to sections.] Hall V. Aitken 218 V. Bishop 670 V. Butterfield 16, 19, 23 V. Frick Co 343 V. Gaylor 360 V. Gilmore 567 V. Hill 371 V. Hinks 325, 650 V. Johnson 627 V. Keating Imp. Co 327 ■V. Keller 435 V. Misenheimer 103 V. Naylor 637 V. Nix 333 V. Pillsbury 154, 157 V. Sands 651 V. Snowhill 383 V. Tuttle 385 V. Warren 35 & Brown Maeh. Co. v. Brown. 270 '273 Hallacher v. Henlein 637 Halle V. Einstein 48 Hallen v. Bunder 65 Hallenback v. Cochran 87 V. Dewitt 654 Hallett V. Parrish 365 Halley v. Troester 33 Hallgarten v. Oldham.. 374, 428, 454 Hallidie v. Sutter St. Ry. Co... 191 Hallock V. Alvord 360 Hallowell v. McLaughlin 607 Halls V. Thompson 633 Halhvood Casli Register Co. v. Berry 490 V. Lufkin 459 Halsell V. Musgrave 638 V. Renfrow 100 Halsey v. Jewett Dramatic Co. . 672 v. Warden 289, 425 Halsey's Case 452 Halstat V. Blakeslee 360 HaLstead Lumber Co. v. Sutton . . 614 Halterline v. Rice 265 Halvordson v. Grossman 450 Ham V. Cerniglia 336 Hambleton's Exr. v. Hayward.. 373 Hambrick v. Wilkins 649 Hamburg v. Wood & Co 396 Hamburger v. Grant 641 V. Rodman 545 Hamet v. Letcher 635 Hamilton v. Calhoun 450 V. Cone 651 V. Franklin 362 V. Gordon 269 V. Highlands 336 V. National Loan Bank.... 141 V. Reeves 672 V. Russell .... 360, 363, 378, 385 Hamilton v. Schlitz Brewing Co. 261 262 V. Singer Mfg. Co 579 V. Thirston 71 V. Thrall 189, 467 Hammatt v. Emerson 632 Hammer v. Breidenbach 193 Hammett v. Linneman 346 Hammond, Re 326 V. Anderson 265 V. Bussey 614 V. Pennoek 648, 649 V. Plimpton ; 399 Hampton v. Swisher 421 Hamrah v. Maloof 600 Hanauer v. Doane 675 V. Gray 681 Hand v. Matthews 296 Haneklau v. Felchlin 39 Hanford v. Artcher 385 V. Obrecht 366 Hankina v. Ingols 367 Hanley v. Sweeny 631 Hanna v. Aebker 651 V. Ingram 664 T. Mills 593 Hannah v. Fife 299 Hannuic v. Goldner 450 Hanover Nat. Bank v. American Dock Co 417 Hanover Bank v. First Nat. Bank of Burlingame 663, 668 Hansen v. Gaar 207, 613 V. Kirtley 207, 487, 631 Hanson v. Armitage 78, 89 V. Busse 200 V. Meyer. 261, 207, 268, 269, 342 V. Roter 55, 99 Harber v. Moffat Cycle Co 486 Hardaway v. Manson 400 Harden v. Wagner 402 Hardie v. Vicksburg, etc., R. R. Co 285, 407, 424 Harding v. Hagar 670 v. Janes 382, 399 V. Larkin 615 V. Wheaton 33 Hardmau v. Booth 635 Hardt v. Western Elec. Co.. 239, 250 Hardwick v. Gettier 643 Hardy v. American Express Co. . 279 479 V. Dias 30, 33 V. Mitchell , 367 V. Ryle 452 V. United States 464 Hargous v. Stone. .230, 250, 252, 253 Hargreave v. Spink 347 Hargrove v. Turner 364 Iviii Table of Cases. [E«ferences are to sections.] Harkness v. Russell .'i24, 326 V. Smith 305 Harlan v. Maglaughlin 042 Harlow v. Putnam 600 Hai'man v. Anderson 514 V. Reeve 69 Harmon v. Harmon 32 Y. Hawkins 37:i V. Owden 452 Harnden v. ilelby 079 Harney v. Pack 377 Harnor v. Groves 240, 483 Harper v. Dotsou 221 V. Peojjle 339 v. Ut3ev 2.6 Harrell v. ililler 62 Harrigan v. Advance Thresher Co 201, 203 Hiirrington v. Blanchard 382 V. Rutherford 630 V. Victoria Graving Dock Co 681 Harris v. Bradley 442 V. Chaffee 392 V. Lee 48 V. Lynn 220 V. Xickerson 297 V. Pence 368 V. Powers 66 V. Pratt 524 v. Runnels- 670, 074 V. Smith 346 V. Tenney 531, 533 v. Tumbridge 00 1 v. Tysfin 631 y. Waite 243 V. \^ oodard 324 Harrison v. Fortlage 188 V. Hatcher 678 y. .Tones 668 V. Luke 170, 50;; v. McCormick 254 v. :\Iora 439 v. ntley 30, 33, 3.") :\racliine Works v. Jliller... 592 Harrod v. Myers 14 Harrow Spring Co. v. Whipple Harrow Co 190, 456, 605 Harse v. Pearl Life Assur. Co . . 663 Hiirseim v. Cohen 27 Hart V. Barney 337, 339 v. Boston & JIaine R. R. . 341 346 y. Brjerly 643 V. Bush 81, 89 V. Carroll lOi; V. Garcia 71 y. Herwig 602 V. ^lills 278 V. Moulton . , 637 i Hart V. Prater 22 V. Ronev 043 V. Wright 230 Hartford, etc., R. R. Co. v. Jack- son 5 Hartin Commission Co. v. Pelt . . 2>' 239 Harting v. Jockers 641 Hartli-y v. Cummings 168 Hartman v. Park & Sons Co... 074 Harty v. Gooderham 464 Harvester King Co. v. Mitchell, etc., Co. . . ., 404 Harvey v. Briggs 13, 19 V. Facey 404 v. Grab'ham 119, 122 V. Harvey 131 V. :\lerril"l 064 V. Stevens 115 v. Terre Haute R. R 426 v. ^'arney 651 Harvin v. Weeks 651 Harwood v. Breese 207 Hasbrouck v. Tappen 121, 123 Hash V. Lore 327 Haskell v. (ireoly 372 V. Rice . . .' 509, V. Starliird V. Tukesbury Haskins v. Warren. . . 343, 34(i, Hass V. Brady Hassell Iron Works y. Cohen. . . Haslack v. JIayers Hastie v. Couturier Hastings v. Dollarhide V, Lovering y. Pearson Industrial Co. v. Moran. . . . Hatch v. Douglas V. Fowler v. Gluck V. Hatch's Estate V. Oil Co Hatfield v. Haubert V. McWhorter V. Phillips Haubelt v. Rea & Page Mill Co. 105, Haughton v. Morton Hausman v. Xye 89, Haven v. Xeal 628, v. Russell Havens v. Grand Island Light, etc.. r'o 280. Haverleigh v. Leighton Haviland v. Willetts Haw V. American Xail Co Hawes v. Humble V. Watson .')45 445 105 448 575 43 5S2 400 161 20 205 323 672 004 375 82 20 450 327 421 318 5 114 111 278 046 191 289 457 029 106 188 514 Table of Cases. lix [Eeferences are to sections.] Hawkins v. Berry 203 V. Bone 37 V. Chace 112 V. Davia 635 V. Graham 191 V. Hawkins 654 V. Hersey 579 V. Pemberton 200, 205 Hawkinsoji v. Harmon 106 Hawley v. Howell 39 V. Keeler 81, 98, 99 V. Sim,pson 452 Purnace Co. v. Van Winkle Machine Works 239 Hawthorne v. Bowman 326 Haxall V. Willis 269 Haycraft v. Creesy 628 Hayoroft v. Walden 614 Hayden v. Demets 561 Hayes v. Burkam 630 V. Hyde Park 674 v. Jackson 103 V. Nashville 591 Hayner v. Churchill 445 Haynes v. Doman 681 V. Hart 579 V. Hunsicker 391 V. Nice 72 V. Sanborn 571 V. Temple 333, 571, 579 Havnor Mfg. Co. v. Davis 235 Hays V. Hall S07 V. Jordan 336, 579 V. Mouille 522, 533 V. Pittsburgh Co... 164, 269, 277 Estate, Re 299 Hayward v. Nordberg Mfg. Co . . 674 Hazard v. Cole 365 V. Dav 665 V. Fiske 317 V. Griswold 654 V. Illinois Central Tl. R. Co. 419 V. Irwin 203 Hazelton v. Sheckells 681 Boiler Co. v. Fargo Gas Co. 204 Hazen v. Wilhelmie 489 Head v. Clark 296 v. Tattersall 270, 271, 273 Heagney v. J. I. Case Mach. Co. 612 Hease v. Mitchell 649 Heath v. West 17 Dry Gas Co. v. Hurd. . .200, 489 Heaver v. Lanahan 589 Hecht v. Metzler 613 Heckathorn, Re 338 Heckman v. Swartz 678 Hedden v. Griffin 627 V. Roberts 460 Hedges v. Hudson Riv. R. Co.. 451 Heflfer v. Martyn 299 Heffington v. Jackson 23 Heffron v. Armsby 105 Heliin v. Bingham 62 Hefner v. Haynes 491, 607 Hege V. New som 488 Hegler v. Eddy 336 Heideman v. Wolfstein 106 Heilbronn v. Herzog. 648 V. McAleenan 625 Heilbutt V. Hickson. . .225, 234,250 256, 257, 258, 474, 480, 483, 655 Heileman Brewing Co. v. Peimeisl. 672 Heimaim v. Ha.tcher Mercantile Co 490 Heims Brewing Co. v. Flannery. 49 Heinbockle v. Zugbaum 324 Heiaer v. Mears 589 Heialev v. Swanstrom 121 Helby'v. Matthews 319, 324, 327 336 Helfresh, etc., Co. v. Honaker.. 57 Helgert v. Stewart 359 Hellama v. Abercrombie 665 Helland v. Colton State Bank... 19 Helmera v. Nagel 55 Helyear v. Hawke 445 Hemmer v. Cooper 628 Hemminga v. Doss 71 Henckley v. Hendrickson 172 Henderaon v. Bamewall 114 V. Beard 106 v. Fox 21 - V. Gibbs 620 V. Henahall 634 V. Louisville, etc., Ry. Co.. 419 V. Railroad Co 207 V. Mabrv 354 V. Williams 316, 421 Co. V. Stilwell 489 Elev. Co. V. North Georgia Milling Co 205, 489, 490 Woolen Mills v. Edwarda. . . 673 Hsndriekaon v. Back 615 Hendrie & Bolthoff Co. v. Collins. 359 Henkel v. Welah 476 Henkle v. Smith 190, 457 Henneqnin v. Naylor 637 Hennen v. Gilman 674 Henney Buggy Co. v. Ashenfelter. 640 Henning's Case 190, 457 Henry v. Fine 29, 33, 34 V. Ritenour -42 Henahaw v. Robins 205 Henaler v. .Jennings 679 Henson v. King 239 Hentz v. .Jewell 664 v. Miller 635 Hercules Iron Works v. Hummer. 326 H«rf ort V. Cramer 646 Herman v. Haffenegger 649 Ix Table of Cases. [Iteferenoes are to sections.] Hern v. Due Herndon v. Gibson Herrick v. Barnes 157, V. Gallagher Herring v. Cannon 327, V. Hoppock V. Skaggs 44."), 613, -Marvin Co. v. Smith Herrman v. Whitescarver's Adm. Hcrron v. Dibrell Hershey Lumber Co. v. St. Paul Sash Co Hershy v. Latham Hersom v. Henderson Hervey v. Dimond V. Rhode Island Locomotive Works.. 326, 336, 337, 339, Heryford v. Davis Herzog v. Hevman v. Purdy" 466, Heseltine v. Siggers Hess V. Dawson Hesselbacher v. Ballantyne Hesseltine v. Stockwell Hesser v. ^^'ilson Hesthal v. Mvles Hetfoeld v. Willey Hewes V. Jordan 75, Hewett V. Griswold Hewlings v. Graham Hewson Supply Co. v. Jlinn. Brick Co Heyworth v. Hutchinson .... 250, V. Knight Hibbert v. Shee Hibblewhite v. il'ilorinc Hibernia Savings Soc. v. Behnke. Hibler v. Thomas Hickerson v. Benson Hickey v. Dole V. ilcDnnald V. O'Brien li;S, Hickman v. Dill 131, V. Hall's Adm V. Haynes 124, V. Quinn V. Sehinip V. Trout Hickock V. Hoyt Hiekok v. Buell Hicks V. British Am. Assur. Co. V. Stevens V. Whitmore Hientz v. Burkhard Hieskell v. Farmers' Nat. Bank Higby V. Whittaker. Higging v. Delaware. 621 299 4211 479 337 326 614 336 265 269 200 98 651 215 326 397 336 600 467 67 467 304 153 368 358 631 7(1 366 22 599 251 491 116 251 128 296 48 079 108 (;3o 464 218 24 599 395 272 621 549 368 585 633 115 55 423 437 592 189 .55, 105, Higgins V. Eagleton . . V. Kusterer V. Jlurray V. Senior V. Spahr High V. Berret Hight V. Bacon Hildreth v. Fitts Hill >'. Anderson V. Baker V. Blake >'. Chamberlain V. Chipman V. Fruita Mercantile Co. . . . v. Goodrich V. Grigsby V. Heller V. Hobart V. Levy V. Ludden V. McDonald V. McKay V. Xorth V. Nutter V. Rewee V. Smith 347, 596, V. Spear 668, V. Taylor V. Townsend Co., George M., Re 191, Hiller v. Ellis Hillhouse v. .lennings Hilliard v. \\eeks Hillman v. Hills V. Wilcox Hills V. Bannister V. Lynch Hillyard v. .Mutual Benefit Ins. C6 llillyer v. Bennett Hilton V. Shepherd Hiiiu's V, Kielil 607, HimroJ Co. v. Cleveland Co.... Hinchman v. Lincoln. .75, 77, 87. Hinckley v. Pittsburg Steel Co . . Hinde v. Liddell V. Wliiteliouse Hinds V. Kellogg Hine v. Roberts Hincly v. Margaritz Hines Lumber Co. v. Wells Town- ship Hinkle v. fJreene Hires v. Hurff Hirsch v. Graves Elev. Co V. Hirsch V. Leatherbee Lumber Co . . 341, V. Steele 495 63 279 114 367 613 233 399 14 674 592 630 599 278 48 507 460 451 664 328 77 552 207 327 600 599 075 378 579 273 636 71 73 291 197 606 278 07G 19 20 613 106 96 190 588 599 94 55 336 20 269 327 156 630 339 343 329 Table of Cases. Ixi [Beferences are to sections.] Hirschfield v. London, etc., Ry. . 629 Hirschman, Re 648 Hlrshom v. Stewart 489 Hirth V. Graham 62 Hiser v. Walbaum 346 Hoadley v. House 608 Hoadly v. M'Laine 103, 106, 171 Hoare v. Rennie 189, 467 Hobart v. Young. .200, 203, 207, 210 Hobbie v. Smith 278, 280 Hobbs V. Bibb 354 V. Carr 374 V. Columbia Brick Co 662 V. Columbia Falls Co 577 V. Whip Co 483 Hochster v. De la Tour 578 Hocking v. Hamilton 456, 585 Hodge V. Tufts 608, 614 Hodges V. Blount 386 V. Hurd 454 V. Kowing 105, 113 V. Wilkinson 218, 615 Hodgkins v. Bond 112 Hodgson V. Barrett 346 V. he Bret 91 V. Ix>v 502 V. Temple 672, 674 Hoe V. Sanborn 232, 237 Hoeffler v. Carew 2lj . Hoeser v. Kraeka 651 Hoey V. Hechtman 48 Hoffman v. Carow 347 V. Chamberlain 615 V. Culver 269 V. Dixon 183, 200, 205, 240 V. Gallaher 191 V. King 462 V. Maffoli 168, 464 V. jVtilwaukee Bank 435 V. Nolte 641 V. Schover 418, 442 Hoffner v. Clark 391 Hogan V. Atlantic Works 135 V. Kvle 507 V. Shuart 613 V. Wixted 650 Hoggins V. Gordon 452 Hogins V. Plympton 205 Hogue V. Mackey 5 Hoit V. Hodge..' 679 Holbrook v. Connor 628 Holcomb V. Noble 608 Holcombe v. Cable Co 215 V. Ehrmanntraut 621 Holden v. Gilfeather 59 V. O'Brien 665 V. Upton 663 Mill V. Westervelt 460 Holder v. Jackson 296 Holdham v. Bentley 630 Holl V. Griffin 421 Holland v. Adams 327 V. Rea 548, 549 Holland's Adm. v. Barnes 42 Assignee v. Cincinnati Co.. 511 Hollenberg Music Co. v. Berry. . 675 HoUender v. Koetter 255 HoUiday v. McKinne 363 Hollins" V. Fowler 635 V. Hubbard 316, 418 Hollis V. Morris 651 Holloway v. Griffith 585 V. Jacoby 489 Holman v. Johnson 663, 670, 674 Holmes v. Bailey 430 V. Blogg 19 . V. Evans 105 V. German Security Bank. . 430 V. Gregg 473, 476, 493 V. Mackrell 112 V. Rice 13 V. Twist 457 V. Tvson 199 Holrovd-v. Marshall.. 138, 139, 145 Hoist v. Stewart 634 Holt V. Green 668, 669, 670 V. Holt 61 V. Knowlton 327 V. O'Brien 681 V. Pie 473, 480 V. Silver 193 V. Sims 235, 236 V. Ward 12, 21 Mfg. Co. v. Ewing 57- Holton v. Smith 317 Hombeck v. Vanmetre 3"' Home Ins. Co. v. Heck 269 Lightning Rod Co. v. Neff . . 250 251 Homer v. Thwing 27 Honck V. Muller 467 Honeyman v. Marryatt 167 Honour v. Equitable Life Assur. Co 585 Hooban v. Bidwell 264 Hood V. Bloch 230, 231, 232 V. Hampton 193 Hoof smith v. Cope 391 Hooker v. De Pnlos 678 v. Midland Steel Co... 629, 633 Hooper v. Chicago, etc., R. Co. . . 426 V. Story 613 Hooser v. Hunt 621 Hooven & Allison Co. v. Wirtz. . 232 233, 239 Hoover v. Maher 278 V. Peters 241 v. Sidener 608 V. Tibbits 526 Lxii Table of Cases. [Bieferences are to sections.] Hopkins V. Bishop V. Cowen 283, 285, V. Ensign V. Grinnell V. iWaxwell V. Stefan V. Swensen V. Tanqueray Hopp V. McWliirter Horacek v. Keebler Horbach v. Hill Horn V. Buck Horner v. Tarkhurst Horr V. Barker 156, 159, Horsley v. "HaTisine Horton v. Buflinton V. ]\[oCarty V. Williams Hortsmeyer v. Connors Horwich -v. ^A'cstern Brewery Co . Hosack V. Weaver Hosier V. Beard Hosnier v. '\\'ilson Hostetter "v. Airman Hotchldn v. Third Nat. Bank . . Hntchkis V. Dickson Hotchkiss T. Higgins V. Hunt Houck V. bright Hough V. Eichardson. . . Houghtaling v. Ball V. Hills Houglvton V. Carpenter V. FurLush Implement Co. v. Doughty. Houk V. Berg Houlditch V. Desanges Hoult V. Baldwin Housding v. Solomon House V. Alexander V. Beak 270. V. Fort 107, 200, liduser's Case -Haines ilfg. Co. v. Har- grove Houston V. Cooper V. Thornton & T. C. R. Co. V. Milam etc., E. E. Co. V. Tierney. . . Hrrvey v. Hobsom 30", 31, How V. Taylor Howard v. Borden V. Castle V. Crompton V. Daly V. Dwight V. Harris V. Hoey , .230 V. Miner 450, 96, 375 287 299 219 327 fi(i7 376 209 072 066 642 608 608 425 368 666 115 620 23 234 347 33 62 633 637 663 273 372 672 633 120 637 200 5S2 215 242 516 608 191 23 271 203 218 324 26 632 034 37 33 378 88 298 662 585 394 170 243 457 Howard v. Sheward 445 V. Simpkins 14, 23 V. Williams 393 Iron \\urks v. Buffalo Ele- vating Co 237 Howatt V. Davis 535 Howden (Lord) v. Simpson.... 676 Howe V. Batehelder 62 V. Havward 97 V. Howe 30 V. Huntington 451 V. .Tones 07, 98 V. Palmer 74, 7,S V. Walker 103 V. Walson 106 Howell V. Alport 526 V. Coupland 164, 661 V. Elliott 386 V. Fisk & Co 366 Howland, Re 329 Hoyt T. Casey 25 V. Insurance Co 156 V. Wilkinson 15, 1, Hubbard v. Bliss 332 V. Long 630 v. IMoore 675 V. ilutual Reserve I\ind Assn 467 V. Sayre 678 Huber v. Guggenheim 628 Mfg. Co. V. Hunter 488, 648 Hucklesbj v. Hook 112 Hndnall "v. Paine 327, 337 -Hudson V. Germain Fruit Co. . 472 474 V. Hill 452 V. Norwood 615 V. Weir 67 V. Warner 373 Furniture Co. v. Freed FuTni- ture & Carpet Co 89 Institution v. Carr-Curran Co 341 Hnebler v. Smith 360 HnfTard v. Al.ero 327 Huffman v. Long 635 V. Mulkey 119 Huglics V. Jones 36 V. Knott 264, 343, 457 Huggins V. Southeastern Lime Co 464 Hugiienin v. Courtenaj 161 Huguenot ifills v. Jempson & Co. 582 Hugus v. Eobinson 391 Hulet V. Achey 608 Hull V. Caldwell 608, 615, 621 V. Hull 136 V. Louth 31, 32, 33 V. Pitrat 602 V. Euggles 674, 675 Table op Cases. Ixiii [References Hull V. Sigsworth 300 Coal Co. V. Empire Coal Co. 467 Humble v. Mitchell 67 Hume V. Sherman Cotton Co. 250, 251 Hummel v. Stern 191 Humphrey v. Merriman 633 Humphreys v. Comline 242 -Humphreysville Copper Co. v. Mining Co 599 Humphries v. :McGraw 357 Hundley v. Webb 370 Hunstock V. Palmer 675 Hunt V. Elliott 299 V. Hammel 358 V. Hayes 48 V. Jones 126 V. Mississippi Cen-tral Ry. Co 407, 419 V. Eousmaniere's Admr .... 655 V. Sackett 218 V. Wyman. . . .270, 272, 273, 497 Huntenberg, Re 19 Hunter v. Giddings 114 V. McLaughlin 628 V. Pfeiffer 299 V. State 279 V. Tolbard 29, 38 V. Wetsell 98, 99, 190, 456 Bros. V. Kramer Bros 280 Huntington v. Bardwell 299 V. Chisholm 135 V. Hall 218 V. Knox 114 V. Lombar 201, 212, 605 Hurd V. Bickford 620 V. Fleming 326 V. Gill 190 Hurff V. Hires 156 Hurlburd v. Bogardus 358, 381 Hurley v. Brown 105 V. Buchi 614 Hurry v. Mangles 558 Hurst V. Altamont JIfg. Co 280 Hustis V. Picklands 669 Huston V. Plato 207 Hutehens v. Sutherland 467 Hutchings v. Nunes 529 V. Stilwell 679 Hutchins v. Gilchrist 399 Hutchinson v. First Nat. Bank . . 642 V. Ford 135 V. Hunter 158 Lumber Co. v. Dickerman . . 608 Huttig Bros. Mfg. Co. v. Denny Hotel Co 672 Hutton V. Moore 175 Huyett & Smith , Co. v. Gray... 613 614 Hyde v. Lindsay 559 V. Watts 452 are to sections.] Hydraulic Engineering Co. v. Me- Haffie 452 Hyer v. Hyatt 21 V. Richmond Traction Co . . . 299 602 V. Smith 327 Hyman v. Cain 21 Hynds v. Hays 681 I. Idaho, The 131, 417 Ide V. Stanton 103 Ideal Heating Co. v. Kramer. . . 235 236, 239 Wrench Co. v. Garvin Mach. Co 250, 599 Idle V. Thcrnton 188, 189 Ijams V. Hoffman 115 Illinois, etc., R. Co. v. Schwartz. 426 C. R. Co. V. Southern Bank. 287 Leather Co. v. Flynn 637 Ilsley V. Stubbs 532 Imperial Bank v. London Dock Co 503 Fire Ins. Co. v. Coos County. 467 Loan Co. v. Stone 33 Portrait Co. v. Bryan.. 2.51, 252 254 Indiana Mfg. Co. v. Hayes 483 Industrial Works v. Mitchell... 487 Ingalls V. Herrick 374 Inge V. Bond 203, 218 Inglebright v. Hammond 153 Ingles V. Donaldson 386 Inglis V. Robertson 428 V. Stock 302 V. Usherwood 519 Ingraham v. Baldwin 30 V. Strong 100 V.Union R. R. Co 201 V. Wheeler 360 Ingram v. Ingram 299 V. Wackernagel 548, 552 Inman v. Elk Cotton Mills 460 Mfg. Co. V. American Cereal Co 191 Inskoe v. Proctor 655 Inslee v. Lane 522, 531, 533 Insurance Co. v. De Wolf 343 V. Hull 680 V. Hodgkins 654 V. Kiger 420, 421, 439 International & G. N. R. Co. v. Shuford 634 Harvester Co. v. Smith 239 Textbook Co. v. MeKone.l9, 21 Irby V. Tilsley 633 Ireland v. Johnson 98 V. Livingston.. 280, 463, 464, 503 Iron Cliffs Co. v. Buhl 278, 461 Ixiv Table of Cases. [References are to sections.] Iroquis Furnace Co. v. Wilkin Mfg. Co 2U4_, 488 Irvine v. Irvine 1:^, 20 Heirs v. Crockett 13 Irving V. Thomas 207 Irwin V. Curie 680 V. Lee 507 V. Thompson 220 V. Wilson 656 Isaacs V. Hard}' 54 V. Royal Ins. Co 452 Isherwood v. Whitmore 473, 480 Isola di Procida, The 419 Israel v. Day 359 Ivancovich v. Stern 381, 630 Ivans v. Laury 234 Ivey V. Lallan'd 674 Ivory V. Jliirphy 113 Izett V. Stetson' 269 J- Jacks V. Estee 29, Jackson v. Alhwvav V. Citv Bank ". v. Collins 628, V. Dean V. Evans V. Garnsev V. Hale .' 156, V. Hayner V. Lewis V. Litch V. Mott 203, V. jSTichol V. Olney V. Sevatson V. Stanfield V. Strowger Telephone Ex- clianse V. Titus V. Tupper 76, V. Wetherill Jacob V. Kirk Jacobs V. Bentley V. Scott Bernheim &, Co. v. Crum. . . . V. Credit Lyonnais Jacob}''s Appeal Jaeger v. Kelley 640, Jaflfray v. Wolf Jaggar v. Winslow James v. Bocage V. Burchell V. Commonwealth V. Fowks V. Fulcrod V. Jellison . V. Muir V. Patten T. Plank 33 448 675 634 375 62 651 417 654 641 121 215 530 654 157 100 112 99 199 108 526 248 396 661 651 651 648 629 210 577 279 44 299 681 103 112 154 James v. Ross 243 H. Rice Co. v. Penn Plate Glass Co 587 Music Co. V. Bridge. . .521, 630 648 Smitli Machine Co. v. Holden. 270 273 Jameson v. Carpenter 665 V. Gregory's Exr 270, 675 Jamieson v. Indiana Gas Co. . . . 676 Jamison v. Harbort 218 V. Simon 75 JanolJe v. Denoncour 382 Janney v. Howard 391 V. Sleeper 450 Jansen v. McQueen 375 Janvrin v. Maxwell 91 Jaquith v. Adams 593 Jarrell v. Young 75 Jarrett A". Goodnow 218 Jarvis v. Davis 370 Jasper County Bank v. Barts.. 491 Trust Co. V. Kansas City, etc, R. R 407, 419 Jefferson v. Querner 459 Jeffersonville, etc., R. R. Co. v. Irvin 430 Jefford V. Ringgold 13 Jeffrey v. Bigelow 631 Mfg. Co. V. Central Coal & I. Co 487 Jeffris V. Fitchburg R. R. Co . . 522 526, 534 Jelks V. Barrett 107, 115 Jemison v. Birmingham, etc., R. R. Co 430 V. Citizens' Sav. Bank 49 Jendwine v. Slade 196 Jenkins v. Frink 299 v. Harrison 106 v. Jenkins 14 v. Richardson 171 Cent. Cas 4 Jenkin.son v. Monroe 269 Jenkyn v. \'aughan 642 Jenkyns v. Brown 2S3, 284, 289 T. Usborne 319, 503, 505, 521 Jenner v. Jlorris 48 V. Smith 275 V. Walker 22 Jenness v. Wendell 70, 295, 296 Jennings v. Carter 385 V. Chenango County Ins. Co. 207 V. Dunham 97 V. Flanagan 265, 269 V. Rundall 27 V. West 296 Jenson v. Lee 593 Jersey City v. Harrison 63, 69 Jessel V. Bath 419 Table of Cases. Ixv [References are to sections.] Jessup V. Bridge 145 v.. Fairbanks 304 Jewell, 0. H., Filter Co. v. Kirk . 207 Jewett V. Uuyer 399 V. Warren 88, 92 Pub. Co. V. Butler 577 Jimmerson v. Lawrence 23 Jobbitt V. Goundry 426 Jobson V. Eppenheim 530 Joest V. Williams 30, 39 John Deere Plow Co. v. Wyland. 672 673 .Johns V. Fritchey 37, 38 V. Reed 676, 680 Johnson v. Bishop 662 V. Brook 106 T. Brooks 602 V. Buck 108, 114, 115 V. Credit Lvonnais Co.. 317, 319 V. Ctittle . ' 89 V. Dick 377 V. Dodgson 108 V. Eveleth 524, 530, 534 V. Faxon 599 V. Gavitt 628 V. Guliek 632 V. Harley 608 V. Harmon 39 V. Hibbard 274 V. Holloway 366 V. Hudson 670 V. Hulings 669 V. Insurance Co 19 V. Jones 106 V. Laybourn 220 V. Lines 25 V. :\IcCue 106 V. McDonald 129, 188 V. M'Lane 270 V. Medlioott 42 V. Meeker 589 V. Meyers 615 V. Miller 664 V. No. Baltimore Glass Co.. 487 V. O'Donnell 637 V. Oehmig 221, 615 V. Packer 12 V. Patterson 654 V. Pie 26 V. Railway Co 278 V. Raylton 238 V. Seymour 628 V. Stoddard 278 V. Wagner 642 V. Walker 164 V. Whitman Co 608 -Brinkman v. Central Bank. 341 346 Co. V. Triplett 636 Forge Co. v. Leonard 467 Johnson's Adm. v. Mendenhall. . . 215 Johnston v. Allen 678 V. Boyes 297 V. Kershaw 463 V. MoConnell 669 V. Rogers 464 V. Russell 679 V. Trask 73 V. Wood 324, 327 Johnstone v. Hall 613 V. Marks 25 V. Milling 584 Jolly V. Rees 48 Jonassohn v. Young 467 Jones V. Berry 669 V. Blake " 393 V. Bloomgarden. ..476, 487,489 498 V. Booth 119 V. Bowden 246 V. Brewer 283, 288, 408 V. Bright 229, 232, 234, 235 V. Brown 648 V. Caswell 299 V. Cavanaugh 670 V. Clark 325, 328 V. Earl 539, 541 V. George 180, 205, 234 V. Gibson 451 V. Gott 367 V. Hugeford 432 V. Jennings 566, 582 V. Jones 534 V. Joyner 107 V. Judd 661 V. Just... 162, 208, 229, 231, 233 234, 236 V. Kokomo Assn 115 V. Light 642 V. McEwan 489 V. McGruder 42 V. Mackenzie 359 V. Mechanics' Bank.. 76, 77, 81 89 V. National Printing Co ... . 487 V. Padgett 232, 24S. 250 V. Pearce 164, 269 V. Quick 200, 239 V. Railroad Co 193 V. Reed 327 V. Reynolds 67, 95 V. Ross 614 V. Ryde 600 V. Schneider 278 V. Smith 621 V. Snider 571 V. Surprise 675 V. Tye 105 V. United States 661 V. Valentine's School 19, 21 Lxvi Table of Cases. [References are to sections.] Jones v. Victoria Doclc Co 112 V. Walker 193 V. Webster 132 Admr. v. Perkins 35 Joplin Water Co. v. Bathe 631 Jonla V. Lewis 371 Jordan v. Coflield 2li V. Indianapolis Co ItJ^f V. Kat7, 119 r. Lendruni 3US V. Parker 620 V. Patterson 407, 599 V. Pickett 629, 632 V. Turner 30/ Joslin V. Caughlin 221, 61o V. Cowee 04S Josling >'. Kingsford 205 Josivii V. Grand Trunk Ey. Co . . 2S3 287 Jossey V. Railroad Co 0.')4 Journal Printing Co. v. Maxwell. 634 Joiirnov V. Priestly 324 Joy V.' Bitzer 203, 014 r. Sears 3(4 V. Schloss 55 Joyce V. Adams 104, 600 V. Shafer 577 V. Swaiin 264 Judd V. Dennison 005 V. Laiigdon 399 V. Weber 636 Jude V. W'oridburn 628, 636 June V. Falkinburg 208 Jiistli v. Wilson 3i;2- Justice V. Elwert ' 177 V. Lang 113 K. Kadisli T. Young 585, 588 Kahn v. Goodhart 370 V. Ivlabunde 272 Kain v. Larkin 641 Kai . McDonald 378 Lacon v. Hooper La Crosse Flow Co. v. Helgeson. Lacy V. Armour Packing Go ... . Ladd V. King V. Moore V. Rogers V. Smith Ladnier v. Ladnier 88, La Grand v. Eufaula Nat. Bank. Laidlaw v. Organ Laing v. Fidgeon 22S, 229, V. ^[cKee Lake, Re Shore, etc., R. Co. v. National Live Stock Bank 413, Lallande v. Hi^ Creditors Lamar Elevator Co. v. Graddock. Lamb v. Lamb V. Utley Lambert Engine Co. v. Carmody. Lamberton v. Dunham Lambeth v. Ponder Lambton. Ex parte Lamkin v. Baldwin Mfg. Co ... . V. Le Doux I..amrae v. Gregg Lamond \. Davall 544, Lamont v. La Fevre Lamprey v. Sargent Lancaster Bank v. Huver V. ]\roore Land v. Jeffries Trust Co. V. Northwestern Bank Landa v. Lattin Landman v. Bloomer V. Glover Landreth v. Wyckoff . . .212, 231, Landwirth v. Shaphran Lane v. Chadwick V. Dayton, etc. Go Lanfear v. Blossman V. Sumner 360, Lang V. Lynch 669, V. Stockwell Langan v. Supreme Council Am. L. of H Lange v. Werk Langf ort v. Tiler Langley v. Langley 452 239 673 121 649 666 651 94 637 631 230 630 662 419 525 407 5 629 512 336 632 135 502 101 20 204 579 575 158 577 33 400 635 435 211 396 240 614 651 279 19 290 374 67.5 382 585 681 342 32 Table of Cases. Ixix [References are to sections.] Langley v. Rodriguez Langton v. Iliggins 134, V. Waring Lansing Iron Works v. Wilbur . . Larned v. Andrews Larsen v. Ditto Larson v. Aultman & Taylor Co. Larue v. Eugely Lash V. Parlin Lassiter v. Ward Lassing v. James Lassiter v. Bussy Latliam v. Cliartered Bank of India v. Sliipley V. Sumner Lathrop v. Clayton V. O'Brien Latta V. United States Lavibacli v. Laubacli Lauer v. Richmond Co-Operative Institution Laufer v. Boynton Furnace Co . . Liiughlin V. Ferguson Laurens Banking Co. v. Bales . . Laussatt v. liippincott La Valley v. Ravenna La very v. Pursell La Vie v. Crosby Law V. Hodson Lawder v. Larkin Co. V. Maokie Grocery Go . . Lawley & Son Corp. v. Park .... Lawrence v. Burnham V. Gayetty V. Owens v. Porter Canning Co. v. Mercantile Co Lawry v. Ellis Lawson v. Terminal Warehouse Co Lawyer v. Post Laying v. Stewart Laythoarp v. Bryant Lazard v. Merchants' etc., Trans- portation Co Leahy v. Lobdell Leask v . Scott 425, 620, Leath v. XHfley Leather v. Simpson Cloth Co. V. Hieronimus . . . Leatherbury v. Connor 346, Leavitt v. Fiberloid Co. 210, 215, V. Fletcher V. Palmer Lebourdais v. Vitrified Wheel Co. Lederer v. Yule 203, 630 277 142 324 670 366 445 438 307 106 197 269 371 538 203 579 376 495 279 271 77 614 370 332 317 304 66 258 669 20 479 608 381 630 329 599 582 156 421 121 426 113 419 507 650 324 435 72 121 511 243 614 207 081 244 212 Leddy v. Barney 654 Ledyard v. Hibbard 154 Lee V. Bangs 487, 489 V. Bayes 347 V. Boyd 680 V. Briggs 587 V. Butler 319, 327 V. Cherry 105, 106 V. Gaskell 65 V. Gorham 327 V. Griffin 54, 563 V. Hawks 121 V. Kimball 425 V. Mutual, etc., Assn 585 V. Portwood 650 V. Tannenbaum 500b Bros. Furniture Co. v. Cram. 327 Leeds v. Wright 530 Lef ever v. Mires 366 Leffingwell v. White 452 Legg, Re 327, 339 v. Willard 516 Leggat V. Sands Brewing Co. . . . 245 I^ggett V. Young 232, 242, 257 & Meyer Co. v. Collier.. 73, 89 278 Leggo V. Welland Vale Mfg. Co. 275 Lehenbeuter Co. v. McCord 104 Lehigh Co. v. Woodring 145 Zinc & Iron Co. v. Bamford. 632 660 Lehman v. Central R. R. & Bank- ing Co 443 V. Feld 664 V. Marshall 430 v. Warren 343, 448 Lehr v. Brodbeck 391 Leibes v. Steffy 356 Leigh V. Mobile, etc., R. R. Co.. 311 l^eight V. Paterson 599 Leighton v. Sargent 237 Leist V. Dierssen 167 Leisy v. Hardin 673 Leitch V. Gillette-IIerzog Mfg. Co. 208 Leith's Estate, Re 516 Lemayne v. Stanley 112 Lemmon v. Beeman 19 Lemonius v. Mayer 664 Lemprifre v. Lange 26 Lenoir v. Linville Improvement Co 661 Lennox v. ^Murphv 507, 577, 662 Lenz V. Blake 225, 476 Leo Austrian, etc., Co. v. Springer. 599 Leonard v. Baker 377 V. Bates 577 v. Davis 88, 92, 262 V. Smith 193 V. Woodruff 109 I^onhardt v. Small 435 Leopold v. Van Kirk 235, 237 Ixx Table of Cases. [References are to sections.] Leqve v. Smith 376 Lerned v. Wannemacher 109 Leroux v. Brown 72, 126 Lesem v. Herriford 378 Leslie v. Hinson 135 Lester v. Buel 6C4 V. East 205, 269 V. Garland 452 V. Heidt 104 V. Howard Bank 663 Leuppie v. Osborn's Ex 48 Levan v. Wilten 333 Leven v. Smith 343, 511 Levi V. Booth 311, 314, 315 V. Levi 299 Levin v. Dietz 108 Leviusou v. Boas 663 Levy V. Cooke 625 V. Glassberg 555, 562 V. Green 278, 462 V. Herbert 448 V. Scott 358 Lewis V. Adams 400 V. Bruton 679 V. Evans 55 V. Greider 552 v. Hojer 452 V. Hubbard 607 v. Jewell 628, 634 V. Latham 675 V. McCabe 329 V. Eountree . 205, 488 V. Springville Banking Co . . 428 V. Swift 366 V. Welch 666, 669 V. \A hittemore 382 V. \Yilcox 381 V. Wood 102 Lewy V. Crawford 679 Libby v. Cushman 571 V. Downey 069 V. Haley 610 V. Ingalls 283, 287 Lickbarrow v. Mason... 406, 42.5. 519 Liddlow V. Wilmot 48 Lieberman v. Puckett 579 Lifshitz V. ilcConnell 489 Light V. Jacobs 633 Lightbody v. Smith 145 Lightburn v. Cooper 608 Lightman v. Boyd 311, 567, 650 Lilienthal v. Ballou 358 V. Drucklieb 642 V. Suffolk Brewing Co 8 633 Lillard v. Mitchell 679 Lilley v. Randall 646 Lillie V. Dunbar 62 Lilly V. Waggoner 35 Lillywhite v. Devereux 91, 96 Linch V. Paris Lumber Co 177 Lincoln v. Buekmaster 35 V. Gallagher 450, 473, 477 V. Quynn 325 Lindauer v. Hay 636 Linde v. Huntington 90 Lindon v. Sharp 352 Lindsay v. Lamb 218 v. Smith 681 Lindsey v. Lindsey 211 Linerode v. Rasmussen 613 Lines v. Smith 218 Lingham v. Eggleston. .164, 262, 269 Linington v. Strong 634 Link V. Harrington 378 Linn v. Gunn 20a Linton v. Butz 39J V. Porter 221 V. Williams 101 Lippincott v. Rich 324,331 Liska V. Lodge 654 Listmau Mill Co. v. Miller 232 Liston V. Brown 48 Litt V. Cowley 539- Littell V. Jones 101 Little V. Dougherty 101 V. Pearson 101 V. Poole 669 V. Van Svckle 238 Littlefield v. Perry 131 Littlejohn v. Shaw 495 Little Rock & F. S. Ry. Co. v. Page 357 Liverpool Assn. v. Fairhurst .... 26 Livingston v. Wagner 171 v. Littell 403 Llansamlet, Ex parte 599 Lloyd v. Wright 81, 89 Load V. Green 637 Loaiza v. Superior Court 628 Lobdell v. Hopkins 450 Lobenstein v. United States .... 464 Locke v. Hedrick 369 V. Locke 656 V. Smith 21 Lockhart v. Bonsall 190, 456 Lockie, Re 452 Lockren v. Rustan 678 Lockwood ilfg. Co. v. Mason Co. 191 Loeb v. Firemen's Ins. Co 672 v. Flash 637 V. Peters 522 V. Stern 664 LoefTel v. Pohlman 635 Loeffler v. Damoree 327 Loewenberg v. Railway Co 516 Loftus V. Maloney 37 Logan V. Carroll' 98 V. Le Mesurier 164, 268, 600 V. Logan 651 V. INhisipk 664 V. Nebraska Moline Plow Co. 326 Table of Cases. Ixxj [References are to sections.] Logan County Bank v. Town- send . . . . .' 668 , 680 Logsdon V. Newton 106 Lombard Water Wheel Governor Co. V. Great Northern Paper Co 236, 278 London, etc., Co., Re 661 Bank v. Simmons 311 etc., Ry. Co. v. Bartlett 527 V. Flower 457 Siong V. Hartwell 119, 121 V. Hickingbottom 218 V. Hicks 207 V. Knapp 391 V. :\rillar 108, 110 V. Pruyn 614 V. Warren 634 V. White 66 V. Williams 15 V. Woodman 627 Longenecker v. Church 650 Longley v. Daly 394 Longnecker v. Shields 675 Loomis V. Bragg 336 ililling Co. V. Vawter 613 Loon, The 419 Lorain Steel Co. v. Norfolk & Bristol Street Ry. Co 324, 579 Loranger v. Jardine 669 Lord V. Cronin 113 V. Grow 200 V. Thomas 589 Lorentz v. Conner 669 Lorillard v. Clyde 500b Lorymer v. Smith 189, 256, 472 Loaeeco v. Gregory 164, 661 Loss V. Obry 655 Lothrop V. Wightman 391 Lott V. DeGraffenreid 393 Loucks V. Taylor 638 Loud V. Pomona Land Co 507 Loudenback Fertilizer Co. v. Ten- nessee Phosphate Co.. 168, 189, 464 467 Louisiana Bank v. Laveille 419 Louisville, etc., Rv. Co. v. Herr. 30 32 Lithographic Co. v. Schedler. 479 Varnish Co. v. Lorick. ...106, 109 Lovatt V. Hamilton 188 Lave V. Barnesville Mfg. Co. 250, 251 V. Harvey 679 V. Hill 389 V. Miller 203 V. Ross 607, 614 Lovejoy v. Michels 167, 171, 172 V. Raymond 366 Lovell V. St. Louis Ins. Co 661 Loveriiig v. Coal Co 161 Loving Pub. Co. v. Johnson. .327, 329 Low V. Andrews 126 Low V. DeWolf V. Pew 2, 132, Lowber v. Bangs V. Conitt Lowder v. Larkin Lowdou V. Fisk Lowe V. Harris V. Harwood V. Matsou V. Trimdle Lowell V. Boston & L. R. R. Corp. Lower v. Winters Lowman v. Excelsior Pattern Co. Lowther v. Lowther Lucas V. Campbell 326, v. Dixon 71, V. Wallace Lucy V. Mouilet 475, 476, Ludden & Bates Southern Music House V. Hornsby Ludlow V. Bowne Ludwig V. Fuller 372, Lufkin V. Jakeman Luhr.3 V. Hancock Lukens v. Aiken V. Freiund Lumley v. Railway Co Lund V. McCutchen Lundy Furniture Co. v. White . . Lunn V. Sliermer V. Thornton 130, 134, Lupton V. White Lydig V. Braman Lyle V. Shinnebarger LjTnan v. Robinson Lynch v. Curfman 213, 239, V. Johnson 20, V. Murphy 203, V. Rosenthal Lynde v. Melvin Lyndon v. Belden Lyon V. Bertram 483, 605, V. Lenon 154, Lyons v. Briggs V. DePass V. Fields V. Hill V. Hoffnung V. Leahy V. Stills Lysney v. Selby Lytle V. Scottish-American Mtge. Co Mabry v. Bullock McAfee v. McAfee V. Busby v. Meadows McAleer v. Horsey McAlister v. .Safley McAllister v. Morgan McAlpin v. Lee , 410 135 181 106 20 638 105 586 366 632 680 65 218 602 330 117 296 497 336 280 387 651 30 646 242 654 167 336 613 137 153 106 02 167 608 22 628 169 399 399 608 157 628 347 370 479 530 621 273 209 336 609 640 368 207 628 589 199 605 IXXU Table of Cases. [References are to sections.] McArthur v. Mathia 264 Co. V. Old Second Bank, 289, 290 McBee v. Caesar 154 McBrayer v. Cohen lOG, 107, 109 110, 115 McBride v. ilcClelland 391 V. Silverthorne 167 McBryan v. Universal Elevator Co 579 McCaa V. Elam Drug Co 200, 233 McCafferty v. Brady 421 McCall V. Powell 336 McCiinJlisli \. Kirkland 371 V. Newman 595 McCarthy v. Baze 371 V. Henderson 16 V. Nash 76 V. Nicrosi 20 McCarty v. Blevins 136 V. Gordon 473 McCaw Mfg. Co. V. Felder 464 McCeney v. Duvall 608 McClain v. Davis 33 McClelland v. Citizens' Bank. . . . 2!)9 McClintock v. Emick 201, 203 McCIoskey v. Central Bank 371 MoClung V. Kelley 230, 243, 269 McClure v. Briggs 191 V. Forney 391 V. Jefl'erson 483 Maclure, Ex parte 661 MoComb V. Donald's Admr..324, 326 337 V. Wright 115 M'Combie v. Davies 318 McCombs v. Guild 324 V. McKennan 559 Macon, etc., Ry. Co. v. Meador . . , 528 McConatliy v, Lanham 64 Mc(.'onihe" v. X. Y. & L. E. R. R. Co 306 McConnell v. Brillhart 113 V. Hughes lliT v. Kitchens 668, 669 V. Kilgallon 593 V. Wright 613 McCord Collins .Commerce Co. v. Levi 613 McCormaok v. Molburg 654 MoCormick v. Basal 585, 593 v. Garnott 028 V. Hadden 397 V. Hamilton 582 V. Kelly 207 Co. V. 'Callen 327 V. Ockerstrom 191 Harvesting Machine Co. v. Balfany 5(56 V. Brady 490 V. Brower 204, 452, 491, 607 V. Brown 612 McCnrmick v. Chesrown. . . . 191, V. Cochran V. Cusack V. Heath V. Knoll 607, v. Kucli V. Markert v. Snell v. Thompson H. C. McCormick Lumber Co. v. Winans McCown V. Mayer 134, Mc( 'ray Refrigerator & Cold Stor- age Co. V. Woods McCrea v. Purmort McCreary v. Gaines McCrillia v. Bartlett v. liow McCroskey v. Ladd Maccullar v. JIcKinley McCullough V. Baker V. Insurance C'n V. Pritchett V. Virginia V. Willey MeCully v. Swackhamer ilcDaniels v. J; J. Connelly Shoe Co ilacdona v. Swiney McDonald v. Born V. Green V. Kansas City Bolt Co ... . V. Hewett V. Patterson V. Yungbluth Macdonald v. Longbottom McDiiniiugli V. Prcscott V. \A"('ljster ^TcDowel V. Chambers JIcDowell V. Caldwell 628, V. Hendrix V. Simms JIaoe V. Hoatli ilcElroy v. jMaxwell V. Roery Mcl'^hvee Afotropolitan Lumber Co 2S0, 502, 507, 509, 5.S4, Mcl'^ntire v. Cvossley JlacEvoy v. ,\ronson ^TolMYan v. Smith 40ri, JIc'l'Aven v. l\I(ircy 167, V. Railvnail Co ^fcl-'adden v. ITendorson 158, aicFarland v. .McCill v. Newman V. Wheeler 509, 511, AleGar v. Williams 627, iMeOaugliey v. Richardson MeCee v. Billingsley 251, McGibbons v. \\'ildcr 497 497 94 613 608 579 562 445 215 236 135 215 113 317 41 21 507 636 593 17fi 332 681 391 390 643 352 675 296 613 614 262 177 71 105 382 679 101 6.34 660 298 58 654 102 558 261 94 524 171 426 269 630 199 515 628 211 256 638 Table of Cases. Lxxiii [Referencea are to sections.] McGiffin V. Ba/rd 615 McGill V. ChilWee Lumber Co.. 511 » 539 McGinnis v. Savage 336 McGirr v. Sell 329 ilcGovern v. Hern 105 McGowin v. Remington 602 McGrath v. Cannon 466 V. Gegner 467, 599 V. Kennedy 679 McGraw v. Fletcher 239 MacGreal v. Taylor 17, 26 ^IcGregor v. J.' A. Warp Ponst. Co 177 McGJuire v. James 391 McGunn v. Hanlin 656 McHenry v. Bulifant 278, 463 ^IcHose V. Fulmer 599 !McIntyre v. Hockin 495 V.' Parks 674, 675 ilclntosh V. Smiley 378 V. Wilson . . .". 368 Mack V. Story 326, 329 McLean v. Fleming 419 V. Republic Fire Ins. Co . . . 457 Macleay v. Tait 633 McLellan v. Williams... 247 McLennan v. Ohmeu. 200 ilcLeod v. Andrews 488 V. O'Neill 370 McLuve V. Sherman 98 Mcilanus v. Boston 101 V. Fortescue 319 V. Gregory 295 McMarlan v. English 391 McMath V. Johnson 507 McMillan v. Fox 161, 164 V. Harris 298 V. Larned 326, 332 McMinn v. Richmonds 21 Legatees v. Phipps 299 McMorris v. Webb 14 McMullen v. Hoffman 299, 681 V. Williams 215 T. Vanzant 602 McNaughton v. ^IcGirl 673 McKanna v. Merry 23, 25 [ McNeal v. Braun. .256, 280, 472, 478 McKay v. Clapp 368 " " V. Simpson 655 McKean v. John Mathews 330 !JIcKee v. Cunningham 48 V. Garcelon 372 V. Jones 614, 665 V. Manice 679 V. Miller 193 etc., Co. V. Martin 358 Mackellar v. Pillsbury. . 156, 159, 376 McKelvey v. Perham 284 McKenzie v. Donnell 31, 33, 36 McKenzie v. Weineman 636 Mackenzie v. Coulson 655 V. Seeberger 628 ^IcKercher v. Curtis 599 Mackey v. Swartz 489, 490 McKibbin v. Martin 390, 391 JIcKinlcy v. Ensell 400 McKinney v. Bank 636 V. Bradlee 270, 273 V. Fort 246 McKinnon v. Jlclntosh 200 Mfg. Co. V. Alpena Fish Co. 237 JlcKinster v. Sa.ger 643 McKnight v. Dunlop 76, 599 V. Gordon 327, 337 V. Nichols 610 Macknight Flintic Stone Co. v. City of New York 177 JIcLane v. Johnson 642 McLaughlin v. Hill 500b V. Marston 280 V. Lange 375 V. Piatt; 156 3IcLay v. Perry 464 Maclean v. Dunn 544, 548 ilcNear v. Bourn 443 McNeil V. Hill 418 V. Tenth Bank 311, 313, 315 Macomber v. Parker 75, 167, 269 V. Peck 368 MePeck v. Graham 35 McPhail V. Gerry 327, 328 McPherson v. Acme Lumber Co. 332 571, 579 Bros. Co. V. Okanogan County 296 McPheters v. Page .' 311 McQuade v. Rosecrans 681 McQuaid v. Ross 234, 240 McQuinnay v. Hitchcock 396 McRae v.' Meirifield 579 McSparran v. Neeley 40 McBeigh v. Lussier 606 McVicker v. May 391 Mader v. Jones 608 Maddison t. Alderson 71 ilaflfet V. Ijams 299 Magdeburg v. Uihlein 426 Magee v. Billingsley 473 V. Scott Lumber Co 191 Magnes v. Sioux City Seed Co , . 547 548, 555, 562 Magruder v. Gage 280 Mahan v. United States 72 Maher v. Van Horn 679 Mahon v. Leech 119 Mahone v. Reeves 649 Mahood v. Tealza 675 Main v. Bearing 232 V. EI Dorado Dry Goods Co. 232 V. Fields 190 v. Jarrett 278, 405 Ixxiv Table of Cases. [Eeferences are to sections.] Mainprice v. Westley jMairs w Baltimore, etc., R. R. Co Ulaize v. Bowman Jlakarell v. Bachelor ]Makin v. Watkinson ilalcomson v. ^Yappoo ilills.. . Mallard v. Curran JIallory v. Leach ilalone v. ilinnesota Stone Co.. Manby V. Scott JIanciiescer v. Tibbetts R. Co. V. Concord R. Co. . . . Warehouse Co. v. Carr JIandel v. Buttles Mandiio v. Healey Mandli-'lifium v. Cregnvicli Manhattan Trust Co. v. Sioux City Co Manheimer v. Harrington Manistee, The Mann v. Ererslon V. National Oil Co V. Thompson Manning v. Johnson Mansfield v. Gordon V. Hodgdon 5, V. Watson 30, .38, jManson v. Dayton Mansur. etc., Co. v. Beeman-St. Clair Co Tehhettg Co. v. Price Manton v. Gammon .lOOb, T- Ray !Manuel .T. Portuondo Co., Re. . . Manufacturing Co. v. Gray.. .. Manufacturers' Bank of ?i[il- waukeo v. Ru.cee Manwaring v. O'Brien Mapps V. Sharpe Mavbury Lumber Co. "\'. Stearns Mfg. Co JTarcotte v. Allen Jlargraf v. ^luir Jfarie v. Garrison Marina, The 3.37, Marine Bank v. Wright. .. .2S0, Con.strnctinn Co., Re Marion ilfg. Co. v. Buchanan... ;Mark v. H. D. Williams Cooper- age Co ^Market Overt. T'a^e of """irkey v. ililwankee ]\larkham v. .Jaudon Markowitz v. Greenwall Co Markwald & Co. v. Their Cred- itors Marlatt v. Clary Marlow v. Pitfield Marner v. Banks 297 412 136 23 457 001 296 646 265 45 640 680 457 607 382 670 327 637 672 245 548 327 19 13 654 39 336 327 327 593 602 502 327 403 621 29S 235 031 031 290 3nn 290 430 145 304 235 347 177 596 585 530 615 24 347 Marr v. Barrett 317 Marsh v. Hampton 385 V. Plvde 70, 76 V. Low 60S V. Rouse 87 V. Russell 299 V. Webber 631 Marshall v. Clark 599 V. Craig 193 V. Drawhorn 207 V. Duke 21S V. Ferguson 01, 77 V. Green 61, 02, 66 V. Lynn 121, 122 ( V. Perkins 48 V. Perry 246 V. Rutton 4R V. Sherman 674 V. Town 399 Marshalltown Stone Co. v. Des Moines Brick Co 299 ]\lartin v. Adam.s .'.... 27S V. Harsh 38 V. Haubner 100 V. Hurlbut 262, 265 V. Mathiot 326 V. Meles 585, 589- V. Moore 215 V. Railway Co 419 V. Remington 640 V. Eoehn 234 V. Smith 654 V. \'\'hite 3,j4 Bros. & Co. V. Lesan 36S Martindale v. Booth 352, 383 V. Smith . ...204, 502, 544, 56» ilartineau v, Kitching 302, 307 Martz V. Putnam 265, 278, 461 Marvin v. Wallis 91 Safe Co. V. Norton 324, 339 Mashburn & Co. v. Dannenberg Co 636 JIason V. Baker 370 V. Bickle 324 V. Bond 400 y. Chappell 200' V. Decker 106, 113 V. Johnson 324 V. Lawing 649 V. Nelson 437 V. Payne 664 V. Smith 483 V. Spiller 58 y. Thornton 20.3 V. Wilson 531, 533 Massey v. Dixon 262, 209 Masters v. Ibberaon 650 Masterton v. ]\ra>or of Brooklyn. 587 Materne v. Horwitz 674, 675 Matheny v. Mason 218, 221, 615 Mather v. Gordon 439' Table of Cases. Ixxv [References are to sections.] jMathews v. Cowan 27, 346 V. Smith 324 Matliewson v'. Belmont Mill 289 344 ilathison v. Prescott 621 Matlock V. Meyers 203 V. Reppy 613, 646 Matteson v. Holt 608 V. Milling Co 579 Matteucci v. Whelan 358 Matthews v. Baxter. . .32, 33, 38, 39 V. Lucia 571 V. JEcElrov 296 V. Matthews 585 Matthey v. Wood G32 Matthiessen v. JIcMahon's Admr. 33 98 Mattingly v. Mathews 552 Mattison v. Wescott 55 Maughan v. Biirns 34 ilauldin v. Mitchell 354 Manlding v. Steele 548 Mavor v. Pyne 393 jMaxfield v. ' Jones 218, 651 V. Schwart 634 Maxted v. Fowler 613, 6'28 Maxwell v. Brown Shoe Co 637 V. Edens 673 T. Lee 239 V. Tufts 337 May V. Loomis 203 V. State Nat. Bank 642 V. Ward 94, 104, 167 Maybee v. Moore 71 V. Tregent 434 Mayer v. Child 67 V. Clark 354 V. Dean 215 V. Dver 613 V. McCreery 168 V. Webster 403 Mayers v. Rogert- 483 JVIaynard v. Insurance Co 418 V. Maynard 631 V. Render 489, 493 Maynes v. Atwater 391 Mazoue v. Caze 296 Mead v. Degolyer 460 V. Gardiner 392 V. Parker 105 Meade v. Smith 360 Meader v. Cornell 600 Meadows v. Meadows 115 Meagher v. Cowing 561 Means v. Bank of Randall 425 V. Williamson 372 Mears v. Waples. . .292, 425, 637, 650 Mearshon v. Pottsville Lumber Co 673 llebius & Drescher Co. v. Mills. . 262 Mechanical Boiler Co. v. Kellner. 55 75, 80, 94 Mechanics' Bank v. GuUett Gin • Co 327 Dedart Pulley Co. v. Dubuque Mill Co 487 Medina v. Stoughton 196, 2] 7 Meehan v. Sharp 07 Meeker v. Johnson ,592 Meggy V. Imperial Discount Co. 313 314 Meickley v. Parsons 208 Meigs V. Dexter 35 V. Dibble 640 Meincke v. Falk 55 Melchoir v. McCarty. . .667, 668, 669 Meldrum v. Snow 439 ilellon V. Davison 105 Melvin, Re 640 Memphis, etc., R. Co. v. Freed.. 525 Menage v. Rosenthal 246 Mendel v. .\ teller 548 Mendenhall v. Treadway 650 Menken v. Baker 385 Mentz V. Newwitter 102, 115 Menzies v. Dodd 403 Mercantile Co. v. Lusk 587 Mercer, Ex parte 642 Mercer v. Le'hy 220 Bank v. Hawkins 156 Merchant Banking Co. v. Pheoni.x Bessemer Steel Co Merchants' Bank v. Bales V. Baltimore, etc., Steamboat Co 285, 412. 424. Nat. Bank v. Bangs 262, 282, V. Citizens' Bank V. Cottrell ■ V. Fraze V. Hibbard ._ 156, V. Union Railroad Co Exchange Bank v. McGraw. Meredith v. Sehaap Merriam v. Cunningham V. Leonard V. Wolcott Merrick v. Wiltse Merrill v. Gore Furniture Co. v. Hill. . .343, 448, Merrimac Mfg. Co. v. Quintard. . Merriman v. Chapman 251, V. Knox V. ilachine Co Merritt v. Clason 101, V. Dufur V. Miller V. Robinson Mersey Steel Co. v. Naylor..466, 532 284 443 278 283 283 327 240 417 430 344 439 640 26 106 600 608 177 346 575 487 255 669 599 112 633 399 638 467 Ixxvi Table of Cases. [References are to sections.] Mershon v. Moors 286, 327, V. Wheeler 327, M'ertens, Re Merwine v. Arndt Mess V. Dufl'us 507, Metcalfe v. Shaw Mews V. Carr Meyer v. Everth V. Haas V. Lemcke V. Richards , , Bros. Uiug Cu. V. White .... Drug Co. V. Puckett 226, Meys V. Markham V. Schemp Meyerstein v. Barber 319, Miamisburg Twine & Cordage Co. V. Wohlhuter Michael -i. Bacon Michaelis v. Wolf Michel V. Ware Michelson v. Collins Michigan Bolt Works v. Steel . . 339 339 662 2!Jt) 577 48 115 254 654 478 600 378 250 257 577 66 350 613 675 177 432 324 168 464 327 343 430 317 434 Buggj' Co. V. Woodson Central R. R. Co. v. Phillips. State Bank v. Gardner Mida V. Geissmann Middle Division Elevator Cu. >•. Vandeventer 189 Middlesex Co. v. Osgood 72, 450 Midland Bank v. Mo. Kansas & Texas Ry. Co.... 28.3, 412, 430 020 Ry. Co. V. Ontario Rolling Mills 467 Migatz V. Sticglitz 593 Mighell V. Dougherty 55 Miles, Ex parte 530 V. Gorton .... 502, 507, 509, 662 Milgate v. Kebble 545 Millard's Admr. v. Hall 354 Milburn \A'agon Co. v. Nise- warner 200 Miller, Re 338 V. Amnion 669 v. Baker 61 V. Barber 30, 33 V. Baynard 298 V. Blankley 26 V. Bryan 368 V. Crawford 643 V. Davis 655 V. Eagle, etc., Ins. Co 169 V. Finley 40 V. Garman 391 V. Hannibal, etc., R. R. Co. 420 V. Hirschberg 663 V. Hyde 4, 570 Miller v. Irvine V. Lacey V. Larson V. Laws V. Leo 168, V. Moore . . .201, 205, 208, V, Morgan V. Pancoast V. Patch Mfg. Co V. Phillips V. Pierce V. Post V. Seaman 2U9, V. Smith 16, V. Steen 336, V. Van Tassell 218, V. Zufall Millhiser Mfg. Co. v. Gallego Mills Co 154, 406, 425, Milliken v. Skillings . . .507. 608, V. Warren 502, 545, Jlilling v. Hillebrand Mills V. Camp V. Howeth V. Hunt V. Paul V. Thompson V. Walton V. \^'arner V. Williams Millsaps V. Estea Millwood V. Littlewood ililne. Brown & Co. v. Henry. . . Milner v. Patton Jlilnes V. Gery ililus V. Covacevich 98, Miltenberger v. Morrison V. Parker Milwaukee Boiler Co. v. Duncan. Brick Co. v. Schoknecht .... ^Machine Co. v. Hamacek... Miner v. Bradley Minneapolis, etc., Ry. Co. v. Co- lumbus Rolling Mill Threshing Machine Co. v. Hutchins Works v. Hally Minnesota Lumber Co. v. White- breast Coal Co 168, Oil Co. V. ilaginnis Thresher Mfg. Co. v. Hanson. Threshing Co. v. Wolfram. . Minock v. Shortridge Minor v. Beveridge Jlinzesheimer v. Doolittle Mirabita v. Tmpoi-ifi Biiu'-' f^^, —"—— 2Mr?86r201, 305, Mishawaka Mfg. Co. v. Smith.. Misner v. Strong 56, Missinskie v. McMurdo Mission Ridge Co. v. Nixon 103 361 678 323 464 489 380 383 212 .392 119 669 2S0 19 579 219 62 439 009 5.58 36ii 300 021 295 177 378 39C 399 065 in 663 391 675 175 99 299 371 236 030 2U3 600 464 487 579 464 135 4SS 60^ 12 66t 642 2S3 502 329 69 403 20 Table of Cases. Ixxvii [References are to sections.] Mississippi Ixigging Co. v. Miller. 327 Valley, etc., Ey. v. United States Express Co 145 Missouri, etc., Ey. v. Bagley. . . . 464 Furnace Co.' v. Cochran. 587, 588 Moline Plow Co. v. Spilman. 326 Pacific Ry. Co. v. Heiden- heinier 441, 537 V. McFadden 419 V. Smith 426 River, etc.. R. Co. v. Brick- ley . 631 Mitchell V. Baker 278 V. Gile 593 V. Le Clair 275 V. Pinekney 206 V. West 385 V. Winslow 138 Mixer v. Howarth 55 Mizell V. Burnett 62, 106 Moakes v. Nicolson 285 Mobile, etc., R. R. Co. v. Dis- mukes 663 etc., Ry. Co. v. Williams 426 Savings Bank v. Fry 269 Mody V. Gregson 234, 257 Mogart V. Smouse 71 Moline Plow Co. v. Braden 327 Scale Co. v. Beed 562, 589 Molitor V. Robinson 375 Moiling V. Dean 480, 493 Molm V. Barton 376 Molton V. Camroux 33 Monaghan v. Agriculture Ins. Co. 1 3 Monarch Cycle Co. v. Royer Wheel Co 467 Mondel v. Steel 605, 612 Money v. Fisher 203 Monk V. Whittenbury 318 Monnett v. Potts 660 Monroe v. Hickox 239 V. Hussey 390 V. Smith 391 Montauk Assn. v. Daly- 106 Monte Allegro 220 Montgomery v. American Ins. Co. 118 V. Kirksey 354 V. Thomson 189 Iron Works v. Smith 571 Moody V. Aiken 65 V. Blake 311, 635 V. Brown 566 V. Drown 567 Mooers v. Gooderham 608 Moog V. Benedicks & Co 354 Mooney v. Davis 636 Moor V. Russel 195 Moore v. Adams 678 V. Bowman 153 V. Esyrum 135 V. Campbell 116, 121 Moore v. Cline C51 V. Eastman 27 V. Floyd 390 V. Goodwin 191 V. Hart 106 V. Hays 86 V. Hershey 33 V. Kelley 399 V. Kendall 666 V. Koger 235 V. Louisiana Nat. Bank.... 290 V. Love 94 V. McKinlay 233 V. Moore 292, 644 V. Mountcastle 106 V. Murdock 665 V. Potter 547, 553, 555 V. Ringgold 362 V. Thompson 113 V. United States 464 V. Williamson 621 Furniture Co. v. Sloane. ... 613 Moors V. Bigelow 656 v. Bird 286, 437 V. Drury 286 V. Jagode 417 V. Kidder 282, 286, 421 V. Wyman 286, 437 Moran v. Moran 30 Jlordecai v. Dawkins 675 More V. Bonnet 681 V. Calkins 33, 35 V. Lott 533 Morehead v. Hunt 298 Morehouse v. Comstock 211 Moreland v. Atchison 629 V. Mvall 61 Morgan v. Bain 577, 662 V. Beaumont 679 V. East 296 V. Gath 460 V. Kidder 579 V. King 261 V. Perkins 269 V. Sykes 72 V. The Republic 396 V. Wickliffe 71 Morgart v. Smouse 71 Morin v. Martz 113 Morley v. Attenborough. 131, 162, 219 V. Consolidated Mfg. Co 203 232 Moroney v. Roughan 467 Morris, Re 336 V. Cleasby 338 V. Cohn 333, 566, 579 V. Coombs 366 V. Gt. Northern Ry. Co . . 32, 33 V. Hyde 382, 399 V. Ijevison 464 V. Lynde 327 Ixxviii Table of Cases. [References are to sections.] Morris v. McLaughlin 379 V. Rexford 343, 346 V. Shryock 533 V. Supplee 599 V. Thompson 218, 631 V. Wibau.x 464, 488 Morrison v. Dingley 156 V. Oium 387 V. Shuster 637 Morrow v. Campbell 269 V. Moore 106 V. Reed 269 V. Southern Ex. Co 168, 464 Shoe Mfg. Co. V. New Eng- land Shoe Co 646 Morse v. Bellows 451 V. Brackett 649 V. Ely 19 V. Hutchins 613 V. Moore. .203, 204, 205, 225, 488 V. Powers 382 V. Union Stock Yards.. 183, 205 488 V. Wheeler 20 V. Woodworth 649 Mortimer v. Bell 298 V. il'Callan 128 Jliirtimore v. Ragsdale 424, 439 Morton v. Clark Ill V. Dean 104 V. Lamb 448, 575 V. Eagan 370 V. Stewart 12, 21 V. Tibbett. .70, 77 78, 79, 94, 96 Morville f. Amer. Tract. Soc... 680 Mosely V. Gainer 621 Moses V. Katzenberger 633 V. Mead 241 V. Rasin 502, 599 V. Taylor 421 V. Teetors 154 Moss V. Atkinson 106 V. Exchange Bank 664 V. Sv.-eet 271, 272 Wise & Co. V. Johnson 371 Motherway v. Wall 629 Jtott V. McNiel 399 !\[nltram v. Heyer 541 Moulton V. Kershaw 464 Repair Co. v. Hill 239 Mound V. Barker 675 Mountain City MiW Co. v. Butler. S04 Mountjoy v. Metzger 585 Mowbray v. Cady 270, 272, 273 V. Merryweather 614 Mowry v. Kirk 451 Muchmore v. Budd 383 Mucklow V. Mangles 275 Mudsill Mining Co. v. Watrous. 648 Mueller v. Guye 93 V. Nugent 662 Mugan V. Regan 592 Muhlenberg v. Henning 660 Mulcahy v. Dieudonne 475, 496 Mullen V. Kerr 670 V. Xoonan 376 Muller V. Eno 608 Mulloy V. Ingalls 35 Mulock V. Wilson 642 ilulvaney v. Rosenberger 207 Mundt V. Simpkins 609, 612 Munf ord v. Kevil 225, 489 ilunicipality Xo. 1 v. Corde- violle . . ' 296 Munroe v. Phila. Wareiouse Co. 292 425, 437 V. Pritchett 632 376 Murch V. Swen^en V. Wright 325, 328 Murchie v. Cornell ... .224, 231,233 Murmann v. Wissler 487 Murphy v. Boese 114 V. Braase 365 V. Clark 602 V. De France 299 V. Mulgrew 358 V. Murphy & Co 368 V. The Sagalo Lumber Co.. 473 Murray v. Barlee 46 V. Brooks 445 V. Carlin 42 T. Chadwick 399 V. Ocheltree 664 V. Smith 630 V. Warner 478 Iron \'\'orks v. De Kalb Elec- tric Co 235 Murry v. Leiter 640 Musselman v. Cravens 30 ilussen V. Price 593 Musson V. Fales 663 Mustard v. Wohlford 19 Muston V. Blake 467 Mutual Assn. v. Taylor 585 Life Ins. Co. v. Hunt 33 V. Phinney 629 Milk Co. V. Prigge 19 Myer v. Car Co 327 V. Wlieeler 467 Myers v. Harvey 391 V. Knabe .' 33 V. ]\teinrath 666, 678 Mygatt V. Tarbell 59 N. Nanson v. Jacob 421 Nash V. Insui-ance & Trust Co.. 613 v. Jewett 26 V. Minnesota Title Ins. Co. 632 650 V. Towne 600 Table of' Cases. Ixxix [References are to sections.] Nashua Iron & Steel Co. v. Rail- road 237 Savings Bank v. Burlington. 613 Steel Co. V. Brush 614 Nashville, etc., Ey. Co. v. Gray- son County Bank 2S5 Nathan v. Giles -123, 430 National Bank v. Atlantic Ey. Co 285 v. Citizens' Banl<: 286, 430 V. Dutcher 50 V. Lackawanna Co 424 v. Mackey 630 V. Matthews 663, 668 V. Ross . 430 V. Sprague . 298, 299 V. Whitney 663 National Bank & Loan Co. v. Petrie 680 Bank of Augusta v. Good- year 338 Bank of Bristol v. Balti- more, etc., E. E. Co . . . 278 285, 292, 407, 412, 437, 650 Bank of Commerce v. Chi- cago, B. & N. Ey. Co. 327 346, 407, 419, 420, 625 V. Merchants Bank 290 Bank of Phoenixville v. Phil- adelphia, etc., Ey. Co ... . 424 Bank of Pontiae v. Langan. 154 Bank of Xenia v. Stewart . . 068 Box Co. V. Gotham 218 Cash Register Co. v. Cervone. 579 V. Lesko 327 V. Schwab 327 V. Zangs 324, 327 Commercial Bank v. Laeka^ wanna Transportation Co. 423 Distilling Co. v. , Cream City Importing Co 872 Exchange Bank v. Granite- ville iXfg. Co 417 V. Wilder 417 Fertilizer Co. v. Fall Eiver Savings Bank 672 Furnace Co. v. Keystone Mfg. Co 168i 464 Lead Co. v. S. E. Grote Co. 672 Machine & Tool Co. v. Stand- ard Shoe Machinery Co . . 467 Newark Banking Co. v. D., L. & W. E. R. Co.... 405, 424 440 Surety Co. v. Long 467 Tar Co. v. Gaslight Co 457 599 Nattin v. Eiley 340 Natural Cotton Oil Co. v. Young. 232 234, 242 Nauman v. Oherle 646 Navassa Co. v. Commercial Co. 203 464 Navigation Co. v. Wilcox 193 Neal V. Boggan 511 V. Flint 215 V. Gillaspy 220 V. Shewalter 306, 563 Neas V. Borches 643 Nebraska Meal Mills v. St. Louis S. W. Ey. Co 285 Neece v. Ilaley 366 Neeley v. Trautwein 380 Neely v. Eembert 632, 634 Negley v. JeJTers 125 Neidefer v. Chastain 628 Neill V. Eogers Bros. Produce Co. 439 440 V. Shamburg 631 V. Whitworth 192 Neimyer Lumber Co v. Burling- ton, etc., E. Co.. 278, 280, 283, 291 525 Neldon v. Smith 129, 188,452 Nellis V. Clark 651 Nelson v. Armour Packing Co . . 242 244 V. Hanson 592 V. Hirsch 548 v. Iverson 421 v. Kinney 641 V. Martin 608 V. Overman 475 V. Eail Co 547 & Co. V. Faber 138 V. Good 393 Nesbit V. Burry 265, 277 Nettleton v. Sykes 62 Neuberger v. Keim 642 Neuchatel Asphalte Co. v. Mayor of New York 672 Neuvirth v. Engler 71 Nevils V. Kentucky Lumber Co . , 184 New v. Swain 507 V. Wambach 634 New Bedford Copper Co. v. Southard 189 Newberry v. Norfolk & Southern Ry. Co 635 Newburger v. Adams 106 Newby v. Rogers 452 Newcomb v. Boston, etc., R. E. Corp • 290 V. Cabell 425, 439 V. Earner 61 Newell V. Fisher 38, 39, 42 V. Holstein Canning Co. . . . 661 V. Eadford 101, 102, 105 V. Smith 169 New England Iron Co. v. Gilbert E. R. Co 507, 662 Trust Co. V. Abbott. . . . 177, 602 Ixxx Table of Cases. [References are to sections.] New England Wool Co. v. Stand- ard Worsted Co. 104, 105, 156, 464 Newliall V. Central Pacific R. R. Co 542 V. Kingsbury 326 V. Langdon 156 V. Vargas . ..502, 503, 532, 535 551 New Haven Wire Co. Cases. .286, 329 New Jersey Furniture Co v. Board of Education 451 Newlin v. Hoyt 106 Newman v. Claflin 608 V. Morris 71 Newport News Co. v. McDonald Brick Co.'s Assignee 661 Newry, etc., Ry. v. Coombe 18 Newsome v. Brazell 5 Newson v. Jewell 522 T. Thornton 503 Newton, Re 329 New York v. Hesterberg 673 etc., Co. V. Williams 673 etc., Ins. Co. v. MoMaster . . 654 Mining Co. v. Eraser 614 Security & Trust Co. v. Capital Railway Co.. 330 V. Lipman 442 Tartar Co. v. French 278 Neyens v. Worthington 673 Niagara Falls Brewing Co. v. Wall 669 Nibert v. Baghurst 665 Nichol V. Steger 25 V. Thomas 30, Nichols V. Ashton 326, V. Clark V. Johnson 105, V. Monjeau V. Pinner 637 V. Potts 327 V. Ramsel 452 V. Raynbred 342 33 337 67 112 313 V. Scranton, etc., Co 585 V. Wyman 215 etc., Co. V. Snyder 19, 20 & Shephard Co. v. Maxson. 50 Shephard & Co. v. Crandall. 215 Nicholson v. Bowen 75 V. Bradfield Union 462 V. Dover . 106 V. Harper 349 V. Taylor 269 V. Wilborn 25 Nickoll V. Ashton 162, 588, 661 Nicol V. Fitch 593 Niell V. Morley 33 Nieman v. Condram 371 Niemeyer v. Wright 669 Nightingale v. Eiseman 460 Nimrod, The Nissen v. Bendixon Nixa Canning Co. v. Lehman- Higginson Grocer Co 232, Nixon V. Brown Noah V. Pierce Noakes v. Morey Noble V. Euswell V. Fagnant V. Hines V. Ward Noel V. Wheatley Nolan V. Jones V. Whitney Nonmagnetic Watch Co., Re . . Nordheimer v. Robinson Nordyke v. Kehlor & Marmon Co. v. Kehlor .... Norfolk, etc., R. R. Co. v. Barnes. v. Mills Norman v. Phillips 74, 77, Norrington v. Wright.. 181, 189. 461, 466, Norris v. Blair v. Harris V. Hix V. Mumford V. Norris V. Parker North V. Forest V. Mendel 105, North American Rv. Const. Co. V. McMath Surveying Co Northampton Nat. Bank v. Smith. North Carolina v. Banderford. . . Northern Pennsylvania E. Co. v. Commercial Xat. Bank Northern Ry. Co. v. Walworth . . Svipply Co. v. Wangard Northfield Nat. Bank v. Arndt . . North Georgia ^Milling Co. v. Henderson Elevator Co... 489, Northington, Ex parte North Penn. R. R. v. Commercial Bank Northrup v. Foot v. Mercantile Trust Co Northwestern, etc., Ins. Co. v. Blankenship Cordage Co. v. Rice... 205, Lumber Co. v. Callender.201, ilutual Life Ins. Co. v. Over- holt ?^v. V. :\IcMichael State Bank v. Silberman.. Norton v. Davison V. Doolittle v. Gale V. Pilger 235 48 242 316 296 97 608 61S 367 121 615 567 177 276 324 656 606 279 177 78 460 467 104 467 135 371 651 207 67 108 177 649 670 287 602 489 489 550 34 283 665 585 33 225 488 203 272 18 134 346 98 360 177 328 Table of Cases. Ixxxi [References are to sections.] Xorton V. Simonds 72, 90 Norwegian Plow Co. v. Clark . . 338 V. Hantliorn 98, 403 Nottingham Coal & Ice Co. v. Preas 599 Soc. V. Thvirstan 24 Xowlan V. Cain 634 Noyes v. Belding 394 V. Blodgett 613 Nuckolls V. Pence 368 Nutbrown v. Thornton 602 Nutter V. Harris 367 V. Wheeler 338 Nye V. Snyder 614 Xysewander v. Lowman 613, 646 Oakland Mill Co. v. Wolf Co. . , . 489 Oakley v. Shelley 32, 38, 39 Oakman v. Boyce 661 Oaten v. Stanley 467 Oatman v. Watrous 48 Ober V. Carson's Exr 269 Oberdorfer v. Meyer 326, 620 O'Brien v. Brietenbach 675 V. Jones 221, 615 V. Norris 522, 533 Co. V. Wilkinson 280 O'Bryan v. Fitzpatrick 609 V. Glenn 648 Ocean SS. Co. v. Ehrlich 528 O'Connell v. Taney 651 O'Connor v. Clark 316 V. Eempt 42 Odeneal v. Henry 495 Odom V. Riddick 31 O'Donald v. Constant 648 O'Donnell v. Clinton 654 V. Leenian 115 V. Wing 270, 273 Oester v. Sitlington 327 O'Farrel v. McClure 261 O'Gara v. Lnwry 379 Ogg V. Shuter 262, 277, 289, 544 Ogilvie V. Foljambe 105 Ogle V. Atkinson 284, 421 V. Vane 123 O'Hare v. Bank 668- Ohio V. Board of Education 681 etc., E. Co. V. Emrich 426 & Miss. R. E. V. Kerr 650 Tresher Co. v. Hensel 211 Oil Well Supply Co. v. Priddy. . 233 O'Kane v. Whelan 358 O'Keefe v. Leistikow 156 Okerson v. Crittenden 679 Old Colony R. R. Co. v. Wilder. 478 R. R. Corp. V. Evans 113 Oldershaw v. Knowles 664 0'I..eary v. Bradford 366 vi Oleese v. Fruit, etc., Co 561 Oliphant v. Markham 675 Oliver v. Goetz 592 V. Houdlet 13 V. Hunting 108, 110 V. McClellan 26 V. Oliver 631 Ollivant v. Bayley 229, 236 Ollive V. Booker 181 Olson V. Lamb 299 V. ilaver 489 V. Sharpless 104, 108, 599 Co. V. Youngquist 48 01 well V. Gordon & Co 643 Olyphant v. Baker 262 Omaha Coal Co. v. Fay 231, 235 Nat. Bank v. Kraus 270 O'Neal V. Clymer 642 V. Day 531 V. Richardson 261 V. Stone 157 Oneal v. Weisman 203 Oneida Bank v. Ontario Bank.. 680 O'Neil V. Grain 103 V. Mcllmoyle 269 O'Neill V. New York, etc., R. R. Co 72 V. Supreme Coxmcil Am. L. of H 585 O'Niel V. Helmke 145 Onondaga Nation v. Tliacher .... 602 Ontario Fruit Assn. v. Cutting Packing Co 164, 661 Lantern Co. v. Hamilton Brass Co 587 Oppenheim v. Eussell 533 Oppenheimer v. Attenborough . . 297 V. Frazer 319 Optenberg v. Skelton 608 Oregon S. N. Co. v. Winsor 681 O'Reilly v. Sweeney 36 Organ v. Stewart 98 Orient Ins. Co. v. McKnight 265 Orman v. Hager 55 Ormsbv v. Budd 201 O'Eourke v. Hall V. John Hancock Ins. Co. Orr V. Equitable Mortgage Co. 32, 13 12 21 30 33 53 Orth V. Orth Ortloff V. Klitzke 76 Osborn v. Gantz 346 V. Nicholson 212 V. South Shore Lumber Co. 304 Osborne v. Baker • 271 V. Carpenter 489 V. McCoy 203, 204 V. McQueen 607 V. Tuller 360 Oscanyan v. Winchester Arms Co. 674 Table of Cases. [References are to sections.] Osen V. Sherman 403 Osgood V. Bauder 681 V. Lewis 197, 205 V. Niciiols 421 V. Skinner 562 Oatrander v. Ouin 24 O'SulIivan v. Overton 105 V. Thomas 679 Oswald V. Godbold 593 Oswego Starch Factory \. Lend- rum U20, 637 Otis V. Adams 467 Ott V. Hentall 48 V. Sweatman 32li, 336 Ottman v. Moak 17 Otto V. Braman 215 Cutwater v. Dodge 75, 81, 269 Owen V. Thomas 106 Owens v. Lewis 62 V. Sturges 184, 185. 60S V. Wecdman 502, 507 Oxendale v. ^Yetherell. .277, 460, 600 Oxford Iron Co. v. Spradley.... 675 Ork^r V. Renfro 313 Ozark Luniljcr Co. v. Cliieago Lumber Co 555, 562, 564 Pabst Brewing Cn. i'. List on. . . . 679 Pacific Guano Co. v. Jlullen.60S, 069 681 etc.. Co. V. Eravinder 209 Packard v. Dunsmore 92 V. Slack 614 Paddock v. Robinson 663 V. Strnbridge 631 Paddon v. Taylor 650 Paetz V. Stoppleman 623 Page V. Carpenter 382 V. Cowasjee Eduljee. . . .217, 544 569 V. Krekey 40 V. Morgan 79, 80 V. Parker 613, 628, 632 Paine v. Fulton 99 V. Hutchinson 602 V. Young 265, 373 Paisley v. Wills 495 Pakas V. Hollingshead 500b Palmer v. Bell 633 V. Breen 467 V. Clark 177 V. Hand 343 V. Hatch 445 V. Jordan 662 V. Roath 215 Panama, etc., Co. v. India, etc., Co 592 Pangborn v. Westlake 668, 670 Panhandle Nat. Bank v. Foster.. 641 Pape V. Wright 67S Parcher v. Holmes 269 Pardee v. Kanady 507, 577, 662 Parham v. Potts-Thompson 643 Parish, Re 662 Park V. Richardson 607 Parke, etc., Co. v. White River Lumber Co 336, 571 Parker, Re 640 V. Baxter 346 V. Byrnes 637 V. Conner 621 V. Crick 196 V. Fenwick 488 602 .... 399 .... 35 .... 382 .... 204 664 483, 608 .... 106 382 585 V. Garrison 143, V. Kendrick V. !Marco V. ^Marvel V. j\roulton V. ntis v. Palmer 250, 251, V. Parker V. Pattee V. Pettit V. Rawlings 448 V. Simpson 646, 649 V. Wallis 75, 77 Parker's Exr. v. Lambert's Adm. 47 Vein Coal Co. v. O'Hern 193 Parkersburg v. Brown 680 Parkinson v. Lee.. 162, 228, 229, 251 Parks V. Morris Ax & Tool Co . . 207 489 V. O'Connor 489 Parlin, etc.. Co. v. ICettrell 258 Co. V. Harrell 327 Parrill v. ^NTcKinley 106 Parris v. Roberts 326 Parrish v. Thurston 631 Parry Mfg. Co. v. Tobln 608, 613 Parsons v. Dickinson 264 V. Hatch 382 V. Hill 13 V. Keyes 21 V. Loucks 55 V. Teller 20 Co. V. Mallinger 235 Parton v. Crofts 116 ■Papcal V. Goldstein 233 Pash V. Weston 327 Pasley v. Freeman 198, 217 Pasteur Vaccine Co. v. Burkey. 672 Patne V. Pelton 218 PatiTson V. Tash 317, 318 Patrick v. Norfolk Lumber Co . . 489 etc. V. Swinuey 615 Patti'e V. Greely 605 Patten v. Smith 360 Patterson v. €lark 679 V. Wright 630 Pattisou V. Coulton 558 Table of Cases. Ixxxiii [References are to sections.] Pattison v. Swillman 602 Paul V. Crooker 382 T. Hadley 631 V. Reed 343 Paule V. Coding 48 Pavilsen v. Hall 218 Paulson V. Lyon 346 Pawelsld v. Hargreaves 55 Payne v. Cave 296 V. Lumber Co 488 V. Wilson 324, 327, 336 Peabody v. Maguire 326, 346 V. "Speyers 67 Peace River Phosphate Co. v. Grafflin 164, 280, 480 Peake v. Conlan 98 Pearce v. Brooks 675, 678 V. Gardner 107 v.- Wilson 681 Pearl v. McDowell 34 Pearne v. Coyne 326 Pearson, Ex parte 278 V. Carter 391 Pease, Ee 662 V. Copp 480 V. Gloahee 425, 437 V. Norton 452 V. Sabin 232, 235, 238 Peasley, Re 141 Peay v. Seigler 109 Peck V. Land 364 V. Whiting 360 Pecke V. Redman 260 Peek V. Derry 613 V. Gurney 624 Peerless Glass Co. v. Pacific . Crockery Co 5 Pelham v. Chattahoochee Grocery Co 620 Pellecat v. Angell 674 Peltier v. Collins 116 Peltz v. Eichele 681 Pembina Mining Co. v. Pennsyl- vania 673 Pembroke Iron Co. v. Parsons . . 464 Pence v. Langdon 648 Pendergaat v. Reed 628 Penley v. Bessey 269 Penn v. Bornman 668 V. Smith 251, 255, 552 Ins. Co. V. Crane 627 Pennell v. Dawson 352 V. McAfferty 483 Penniman v. Hartshorn 112 Pennington v. Townsend 672 Pennock v. Stygles 200, 489 Appeal 298 Pennsylvania Co. v. Holderman. 282 426 V. Wentz 668, 681 Pennsylvania Lumbermen's Ins. Co. V. Meyer R. R. Co. V. Shay V. Stern 283, Penrose v. Curren Penshorn v. Kunkel People V. Aldridge v. Cannon V. Gluck V. Peckens V. Stephens V. Walker V. Wemple ex rel. Oil Creek Gold 3Iin- ing Co. V. The Court of Appeals of New York v. Globe Ins. Co People's Bank v. Bogart V. Frick Co V. Gayley Nat. B.ink V. Central Trust Co Savings Bank v. James Peoria Bank v. Logan etc., Ry. Co. v. Buckley.... Grape Sugar Co. v. Babcock. V. Turney 230, Mfg. Co. V. Bain Mfg. Co. . Pepper v. Western Union Tel. Co. Percival v. Oldacre Percy v. Benedict Perdue v. Harwell Perin v. Parker Perkins v. Anderson v. Bell 480, V. Best V. Cummings V. Douglas V. Eaton V. Frazer V. Grobben V. Hadsell V. Hyde V. Lougee V. Rogers V. Savage V. Whelan Perley v. Balch 608, Perlman v. Sartorius Perrin v. Wilson Perrine v. Barnard V. Cooley V. Serrell Perry v. Foster V. Mt. Hope Iron Co.. 278, v. Rogers V. Young Mfg. Co. V. Tobin Tie Co. V. Reynolds Person v. Stoll 673 654 424 27 105 589 270 340 628 299 452 673 236 661 631 516 417 632 628 283 405 104 236 467 5 209 648 207 664 635 483 328 681 393 679 585 579 113 679 630 674 678 221 646 450 23 507 215 607 361 461 634 339 605 487 593 Ixxxiv Table of Cases. [References are to sections.] Fetch V. Tutin Peter v. Wriglit Peterkin v. Martin Peters v. Elliott V. Featherstun V. Fleming Saddlery & Harness Co. v. Schoelkopf & Co Peterson v. Brown V. Doak V. Mineral Fruit Co V. Tufts V. Woolery Petillon V. Hippie Pettingill. Re V. Elkins V. Merrill Petitt V. First Nat. Bank of Jlempliis Pettit's Admr. v. Pettit's Dis- tributees Pettyplace v. Groton Mfg. Co . . . Peuchen v. Imperial Bank Peycke Bros. v. Hazen Plielan v. Gardner Phelps V. Bomis V. Samson V. Seely V. Whitaker Phenix Iron Works v. McEvony. Phifer v. Erwin Philadelphia Whiting Co. v. De- troit Lead Works. .. .475, etc., R. Co. V. Wireman.... Philips V. Hatch Phillip V. G.allant Phillips V. Cornelius V. Crosby V. Gifford V. Hollenberg Music Co ... . V. Huth V. Lloyd V. Moor V. Ocmulgee Mills..?", 100, 117, 156, V. Reitz V. Vermillion & ButtorfT Mfg. On. v. Wild. etc., Co. V. Seymour 487, Phillipson v. Hayter Phippen v. Stickney Phipps V. Buckman Phoenix Bessemer Steel Co., Re. 577, Ins. Co. V. Doster Lock Works v. Capelle Hard- ware Co Physio-Medical College v. Wilkin- son Piazzek v. White 156, 134 629 307 439 327 396 651 643 278 327 327 679 662 399 274 430 681 324 219 368 38 327 620 119 215 620 649 167 477 278 674 5 114 203 109 304 318 23 164 101 159 369 200 445 592 48 299 633 467 662 457 450 33 157 Picard v. McCormick 628 Piche V. Bobbins 197 Pickard v. Hopkins 366 Pickering v. Busk 314, 316, 318 V. Ilfraeombe Ry. Co 681 Pickford v. Grand Junction Ry. 448 Piedmont Land Co. v. Piedmont Foundry Co 630 Land, etc., Co. v. Thomson- Houston Motor Co 324 Pierce, Re 326, 329 V. Chipman 309 V. Kelly 390 V. O'Brien 621 V. Pierce 681 V. Staub 579 V. Tierseh 632 Pieronnet v. Lull 664 Pierson v. Crooks 473, 489 V. Spaulding 593 Pigot's Case 681 Pike V. Balch 115 V. Fay 204, 250, 251, 254 V. King 666 V. Pike 35 V. A'auglm 269 Co. y. Richardson Co 55 Pikes Peak Paint Co. v. Masury. 648 Pilgreen v. The State 27 !J Pillen V. Erickson 667 Pine River Logging Co. v. United States 464 Pinkham v. Appleton 269 V. Crocker 317 V. Havnes 457 V. Libbey 161 V. Mattox 73 Pinney v. Andrus 207 V. Railroad Co 451 Pioneer Savings Co. v. Non- nemacher 118 Pitcher v. Webber 610 Pitkin V. Xoyes 55, 61 Pitman v. Baumstark 157 Pitney v. Glens Falls Ins. Co.. 72 Pittman v. Pittman 585 Pittsburg, etc., R. R. Co. v. Noel. 269 Pitzee v. Rogers 370 Place v. Jtcrrill 197 Plaisted v. Holmes 382 riank V. Jackson 675 Piano Mfg. Co. v. Root 215 Plant V. Condit 608 Planters & ]Merchant3' Bank v. Borland 354 Rice Mill Co. v. ilerchants' Nat. Bank 418 V. Olmstead 418 Piatt v. Brand 585 V. Broderick 191 Pleasantou v. Johnson 373 Table of Cases. Ixxxv [References are to sections.] Pleasants v. Pendleton. 152, 156, 159 Pletts V. Seattle 275 Plevins v. Downing 121 Plumb V. Campbell 169, 548 Plumley v. Massachusetts 673 Plunger Elevator Co. v. Day 273 Plymouth Foundry Co. v. Fee.. 326 Poirier v. Gravel 585 Poland V. Brownell 204, 628, 634 V. Miller 614 Paper Co. v. Foote Co 487 Polenghi Bros. v. Dried Milk Co. 479 Polglass v. Oliver 495 Polhemus v. Heiman. . .200, 460, 464 489, 605, 608 Poling v. Flanagan 402 Pollard, Ex parte 577 V. Reardon...292, 421, 423, 437 V. Vinton 284, 410, 419 Pollen V. Le Roy 549, 552, 553 Pollock V. Aguer 679 V. Sullivan 663 Pomeroy v. Bailey 641 Ponce V. Smith 613 Pond V. Smith 676 Pontiac Buggy Co. v. Skinner. . 329 Pool V. Pratt 21 Poole V. Houston, etc., By. Co.. 527 541 V. Middleton 602 Poore, Be 336 Poorman v. Witman 329 Pope V. Allis. .ISO, 225, 278, 473, 600 V. Linn ' 667 V. Porter 467 V. Terre Haute Car &, Mfg. Co 451 Poplett V. Stockdale 674 Popp V. Swnnke 106 Pordage v. Cole 467, 575 Porell v. Cavanaugh 650 Port Iron Co. v. Groves 235 Porter v. American Legion of Honor 585 V. Arrowhead Reservoir Co. 592 v. Bright 219 V. Bucher 379 v. Dunn 593 V. Leyhe 567 Portland Flouring Mills Co. v. British, etc.. Ins. Co 289 Portuondo Co., Manuel J., Be . . 502 Posey V. Scales 190, 456 Posner v. Seder 593 Post V. Berwind-White Coal Mining Co 391 V. Corbiii 141 Postal Tel. Co. v. Schaef er 5 Postelle V. Rivers 675 Potomac Steamboat Co. v. Har- lan, etc., Co 201 Potter V. Dennison 317 V. Mather 360 V. Necedah Lumber Co.... 613 V. Payne 360 V. Peters 108 V. Potter 628 V. Taggart 648 V. Washburn 368, 369 Potts V. Rose Valley Mills 661 Poulton V. Lattimore 488 Pound V. Williams 608 Pounder v. Foos 391 Poussard v. Spiers 164 Powell v. Bradlee 637 V. Chittiek 207 V. Inman 65 1 V. McAshan 66 V. Rich 61 V. Robinson 421 V. Sammons & Dotes 592 V. Stickney 367 V. Yeazel 380 Power V. Barham 196 V. Wells 511 Powers V. Benedict 648 V. Briggs 210 V. Burdick 332 V. Clarkson 61 V. Green 366 Prairie Farmer Co. v. Taylor. . 271 272 Prater v. Campbell 62, 244 Pratt V. Bryant 153 V. Burhans 329 V. Burr 640 V. Chase 94 V. Cox 642 V. Freeman Mfg. Co 547, 548 549, 555, 562 V. Metzger 634 V. Miller 55 V. Parkman 374 V. Philbrook 633 Pray v. Burbank 669 V. Mitchell 67 Preble v. Bottom 592 Pregnall v. Miller 393 Preist V. Last 231, 233, 234, 248 Prendergast v. Lee 467 Prentice v. Fargo 231, 239 Co. V. Page 323 Prentiss Tool & Supply Co. v. Sehirner 385 Presbury v. Fisher 681 Prescott V, Battersby 669 V. Locke 55 V. Norris 27 V. Webster 48 Pressel v. Bice 391 Preston v. Luck 5, 657 V. Peterson 368 Ixxxvi Table of Cases. [Refereneeg are to sections.] Preston v. Southwick 385 V. Witlierspoon 157 Prestwood v. Troy Fertilizer Co. 642 PreAvitt V. Trimble 608 Price Y. Furman 19 V. Green 681 V. Hewett 26 V. Jennings 23 V. Jones 324 V. Pepper 161 V. Reed 630 V. Sanders 22, 23, 24 V. Wisconsin Ins. Co 407 Prince v. Boston & L. P.. Co 278 Pringle v. Canfield 336 V. Rliame 393 Pritchett v. Jones 391 Probart v. Knoutli 24 Proctor v. S]:ratlev 252 Prout V. Wiley ...''. 20 Providence Coal Co. v. Coxe.406, 467 Provost V. Cook 242 Prussia, The 283 Pryor v. Foster 613 Public Parks Amusement Co. v. Embrec-ilcl^an Carriage Co . . 339 Puckett v. Reed 408, 439, 442 Puget Sound Depot v. Rigby. ... 55 Pugh v. Chesseldine 115 Puffer V. Lucas 336, 579 Pullan V. Cincinnati, etc., R. R. Co 145 Pulliam V. Burlingame 421 Pullman Car Co. v. iletropolitan Ry 236 Y. Pennsylvania 397 Palace Car Co. v. Central Transportation Co 663 Pullman's Co. v. Central Trans- portation Co 49 Pulsford v. Richards 650 Punteney-Mitcliell Mfg. Co. v. T. G. Northwall Co 614 Purcell Co. v. Page 168 Purdon v. Western Union Tel. Co. 71 Puritan Coke Co. v. Clark 566 Purner v. Piercy 61 Pursley v. Hays 20 Pusey V. Pusey 602 Trustee v. Wathen 221, 615 Putnam v. Dutch 374 V. Glidden 545, 553, 555, 559 Putney v. Day 62 Pybus V. Mitford 452 Pyne v. Wood 23 Quaker Mfg. Co. v. Tucker, Lev- ett & Loeb Co 273 Queen v. Demers 464 Queen v. Fisher 452 v. Rogers 452 City Glass Co. v. Pittsburg Clay Pot Co 235 Quinby v. Shearer 634 Quinn v. Davis 311, 314 V. Parke, etc., Co 336 Quintard v. Bacon 93 E. Eaabe v. Squier 46T Racine Satley Co. v. Meinen.... 327 Raeside v. Hamm 631 Raffles V. WiclnlUaus 5 Rafolovitz V. American Tobacco Co 168, 464 Ragan v. Kennedy 395 Ragland v. Wood 450 Ra.gsdale v. Shipp 207 Rahilly v. Wilson 154 Rahm v. Deig 599 V. Klerner 108 Rahter v. First Nat. Bank 670 Rail V. Little Falls Lumber Co . . 262 Railroad Co. v. Taylor 681 Rainwater v. Durham 23 Raleigh, etc., R. R. Co. v. Lowe. 287 437 Ralli V. Rockmore 599 Ralphsnyder v. Shaw 299 Ramish v. Kirschbraun 289 Ramsay's Estate v. Whitbeck 681 Ramsey v. Smith 675 v.'Tully 487 etc., Co. V. Kelsea 42(> Rand v. Iowa Central Ry. Co 662 Randall v. Kehlor ..." 445 V. Lautenberger 298 V. Xewson 234, 235, 237, 614 V. Sweet -24 Randle v. Stone 304 J-tandolph v. Merchants' Bank.. 435 Randon v. Toby 221 Rankin v. Holloway 377 Rannells v. Gerner 32 Ransberger v. Ing 200, Raphael v. Burt 217, V. Reinstein Rapid, The ' Rapp V. Rush Rapple V. Hughes Rappleye v. Racine Seeder Co.. 577, Rastetter v. Reynolds Ratcliffe v. Sangston V. Smith Ratzer v. Burlington, etc., R. R. Co 285. 424, Rawson Mfg. Co. v. Richards . . Ray V. Mackin 210 218 600 674 366 365 507 662 562 620 678 444 327 299 Table of Cases. Ixxxvii [References are to sections.] Eay V. Thompson 271 V. Tubbs 27 Eayfield v. Van Meter 579 Kaymond v. Colton 56, 69, 99 V. Wathen 35 Eaynes v. Bennett 48 Eazey v. J. B. Colt Co 614 Kea V. Alexander 386 V. Durkee 48 V. Schow 261 Read v. Stayton 221 Reade v. Livingston 641 Reager v. Kendall 637 Reando v. Misplay 34 Rearsby & Cuffer's Case 24 Reason v. Jones 32 Rector v. Danley 357 Redd V. Burrus 135 Redenbaugh v. Kelton 327 Redewill v. Gilleu 324 Redgrave v. Hurd 632, 634 Redhead v. Wyoming Cattle Co. . 235 240 Redington v. Roberts 637 Redlands Orange Growers' Assn. v. Gorman 189, 487 Redmond v. Smock 548 v. Wynne 177 Red Wing Mfg. Co. v. Moe 215 Reed v. Brewer 675 V. Crissey 48 v. Hastings 200 V. Jewett 372 V. Loney 621 V. Minor 362 V. Randall 489 V. Reed 372 Reeder v. Maehen 156 Bros. Shoe Co. v. Prylinski. 637 Reese v. Bates 203, 445 V. Miles 614 River Silver Mining Co. v. Smith 648 Appeal 602 Reeves v. Coming 628, 629 v. Peterman 640 V. Berkshire Justices 452 Reg. V. Fisher 452 V. Rogers 452 Regier v. Craver 327 Reggio V. Braggiotti 614, 615 Rehberg v. Tontine Surety Co.. 49 Eeid V. Alaska Packing Assn... 660 V. Bird 620 T. Bradley 654 V. Cowduroy 637 V. Diamond Plate Glass Co. 103 V. Field 487 V. Hoskins 661 V. Kempe 636 V. Macbeth 275 Reid V. Teakle 48 Eeiger v. Worth 203, 614 Reinhard v. City 680 Reinhart v. Gregg 91 Reinskopf v. Rogge 29, 39 Eelyea v. New Haven Rolling Mill Co 418, 419, 420 Remick v. Randford. . .75, 78, 79, 80 Remington V. Linthicum..71, 106, 117 Remy v. Olds 585 Renninger v. Spatz 391 Rentch v. Long 71 Repaunno Chemical Co. v. Victor Hardware Co 640 Restad v. Engemoen 265, 269 Retioker v. Katzenstein 637 Reuss v. Picksley 72, 106 Renter v. Sala 453, 466 Rew V. Payne 289 Rex V. Gamlingay 452 V. Knight 452 Buggy Co. V. Ross 522 Reybold v. Voorhees 41)7 Reynall v. Sprye 680 Reynolds v. Beck 378 V. B. & M. R. Co. . ..522, 526, 541 V. Callender 562 V. Crawfordsville Nat. Bank. 663 V. Dechaums . . , 37 V. Franklin 613 V. General Electric Co.. 233, 239 V. Kirk 101 V. MeCurry 19 v. Spencer 278 v. Stevenson 666 Rhea v. Otto 307 Rheiustrom v. Steiner 472, 497 Rhines v. Phelps 366 Rhoades v. Cotton 452 V. Fuller 33 v. Malta Vita Pure Food Co. 674 Rhode Island v. Empire Lumber Co 327 Rhodes, Re 33, 34 V. Iowa 673 V. Mooney 516, 562 V. Summerhill 674 Rhymney Ry. Co. v. Brecon, etc., Ry. Co 467 Rib River Lumber Co. v. Ogilvie. 464 Rice V. Boyer 16, 26 v. Butler 19, 23 V. Churchill 450 V. Codman 203, 215, 246 V. Courtis 399 V. Fidelity & Deposit Co... 467 V. Forsyth 218 V. Weber 661 Co., James H. v. Penn. Plate Glass Co 587 Rich V. Utah Bank 159 Ixxxviii Table of Cases. [References are to sections.] Richards v. Burroughs V. Doe V. Holmes V. Schreiber V. Shaw Richardson v. Brix V. Brown 205, V. Coffman V. Dunn V. End V. Goddard V. Grandy 200, V. Insurance Co V. Johnson V. Kimball V. Marshall County >'. Mason V. Noble V. Pate V. Smart V. Smith 76, V. Strong Dry Goods Co. v. Goodkind . Mfg. Co. V. Brooks Richburg v. Sherwood Richison v. Mead Richmond v. Foss V. Moore 6C5, Ricker v. Cross 382, Ricketts v. Sisson Rickev v. Tenbroeck 73, RiddoU V. Shirley Riddle v. Dow V. Keller V. Perry V. Varnum 2G2, V. Webb Rider v. H:\thaway Y. Kelley 274, Ridgely v. Conewago Iron Co... Ridgeway v. Herbert 19, V. Kennedy V. Wharton Ridgley v. Mooney 548, 552, Ridgway v. Ingram Ridout V. Burton Riggan v. Green 30, Righter v. Roller Rilev V. Carter 30, "v. Dillon 13, V. Mallory Rindskopt v. De Ruyter Rineer v. Collins Ring V. Jamison Rinn v. Rhodes Riordan v. Doty Ripley v. McClure Ritter v. Mutual Life Ins. Co.. River Spinning Co. v. Atlantic Mills 77 420 298 571 460 609 213 191 278 403 065 488 264 207 606 218 212 628 20 35 94 34 036 338 48 191 669 666 403 238 !)4 640 145 CU7 679 269 203 153 506 660 20 324 167 582 107 399 33 391 60S 32 324 16 89 105 20 367 664 578 661 564 Rivers v. Gregg 22, 25, 26 Roach v. Curtis 579 V. Karr 654 Roalswitk, Re 636 Robbins v. Chipman 156 V. Conley 500b V. Eaton 20 V. Oldham 370 Robert C. W'liite Co. v. Chicago, etc., R. R. Co 439 Roberts v. Applegate. . .198, 200, 203 V. Barnes 666 V. Brett 452 V. Noyes 421 V. Wiggin 15 Robertson v. Clarkson 207 V. Coleman 635 V. Davenport 577 V. Strickland 269 Robeson v. French 666 Robinson v. Allison 20 V. Berrv 17 V. Cooper 220 270 654 681 159 20 637 132 V. Fairbanks . V. Glass V. Green . ... V. Haas . ... V. Hoskins V. Levi V. Macdonnell V. M'Donnell 651 V. McNeill 215 V. Memphis & Charleston Rv. Co .". 419 V. Morgan 507, 558 V. Noble 464 V. Pogue 278, 285 V. Reinhart 630 V. Eeynolds 435 V. Springfield 651 V. Stricklin 258 V. Weeks 16 V. Welty 632 V. Woolstein 641 Robison v. Thl 380 Robson V. Bohn 467, 592 V. Swart 420 Robv V. Reynolds 487 *v. West 668 Roceo V. Frapoli 674 Rocheblave v. Potter 378 Rochester Distilling Co. v. Rasey. 135 Oil Cn. V. Hnghey 277 Rock V. Healy 487 Rockefeller v. Merritt 613 Rockford, etc., R. R. Co. v. Shumick 654 Rock Island Plow Co. v. May- nard Sav. Bank ! . 327 V. Meredith 483 V. Peterson 673 Table of Cases. Ixxxix [References are to sections.] Rockwell Mfg. Co. v. Cambridge Springs Co 487 Roekvvood v. Collamer 399 Rode V. Arney 614 Rodgers, Re 417 V. Bachman 324, 326, 579 V. Jones 91 V. Niles 237, 243 V. Perrault 215 V. Phillips . , ,75, 78, 79, 83, 89 93 Rodliff V. Dallinger 635 Rodman v. Guilford 460 V. Robinson 665 V. Thalheimer 637 Rodwell V. Phillips 61 Roebling's Sons' Co. v. Lock Stitch Fence Co 589 Eoehm v. Horst 585, 587, 598 Rogers v. Beckrich 235 V. Blackwell '. 30, 31 V. Brown 608 V. Burr 67 V. Cox 66 V. Dare 388 T. Davis 452 V. Dutton 635 V. Empkie Co 445 V. Gould 81 Hanson V. Lambert V. Mariott V. Place V. Rogers V. Thomas V. Verlander V. Virginia-Carolina cal Co Walker Warren 608 421 664 654 35 522 641 Chemi- 630 29 37 V. V. V. Whitehouse 329 V. Woodruff 129, 188 & Co. V. Simmons 672 Locomotive Works v. Lewis. 337 Rohde v. Thwaites 75, 275 Rohland v. Rooke 391 Rohrbough v. I^eopold 567, 625 Rollins v. Northern Land Co ... . 205 Engine Co. v. Eastern Forge Co 230, 235, 236, 237 Roman v. Bressler 77, 489 Romberg v. Hughes 327 Romeo v. JIartucci 313, 317 Rommel v. Wingate 278, 452, 461 Ronan v. Bluhn . ■ 33 Rondeau v. Wyatt 54 Roof v. Chattanooga Pulley Co . . 324 V. Stafford 12 Roosevelt v. Doherty 317 Root v. French 650 Roots V. Lord Dormer 295 Roper V. Johnson 587 Ropes V. Lane 156 Roscoria v. Thomas 206 Rose v. Barclay 631 V. Colter 367 v. Mitchell 675 Roseman v. Canovan 207 Rosenbaum v. United States Credit System 661, 674 Rosenbaums v. Weeden 548, 549 Rosenberg v. Doe 634 Rosenfleld v. Swcnson 489 Rosenthal v. Kahn 269 v. Rambo 609 Rose.s, The Carlos F. . . .291, 410, 440 Rosevear China Clay Co., Ex parte 530 Ross V. Chicago, etc., Ry. Co ... . 287 V. Cooley 364 V. Edwards 42I V. McDuffie 336 V. Miner 637 V. Terry 432 V. Union Pa.eific Ry. Co ... . 602 -Meehan Co. v. P'ascagoula Ice Co 330, 332 Rossiter v. Cooper 191 V. Miller 105 Rossman v. :\IcFarland 668 Roth V. Taysen 588 Rothchild V. Rowe 399 Rothgerber v. Gough 366 Rothschild v. Mack 628, 636 >'. Swope 358 Rothwell V. Luken 274 Roubicek v. Haddad 55 Rounsaville v. I.«onard Milling Co 589 Rourke v. Short 169 Routledge v. Worthington 215 Rowe v. Osborne 116 Rowland v. N. Y., etc., R. R. Co 5 Rowland's .'idmr. v. Shelton 615 Rowley v. Bigelow 131, 417 Roy V. Northern Pacific Ry. Co. 419 Royal Exchange Assurance Cor- poration V. Sjorforsakings Ak- tiebolaget Vega 681 Royston v. Miller 654 Rozek V. Redzinski 651 Rozier v. Williams 366 Rubin V. Sturtevant. . . . 184, 185, 489 493, 498, 559 Ruble V. Massey 193 Ruck V. Hatfield 283 Rucker v. Donovan 539, 541 V. Harrington 121 Rucknian v. Bergholz 670 v. Pitcher 679 Rued V. Cooper 664 Table of Cases. Ruff V. Jarrett 215 Eugg V. Minett 2lj5, 301 V. iloore 467 Rule V. BoUes 390 Runimington v. Kelley 592 Rumpf V. Barto 315 Ramsey v. Berrv B64 V. Shaw . .". 04!) Rundlett v. Weeber OSl Runj'on v. Groshon 383 Rupley V. Daggett 5 Rusk V. Fenton 33 Ru^s Lumber Co. v. iluscupiabe Land Co 577, 630 Russell V. Ccile 651 V. Corning Mfg. Co 614 V, Critchfield 230 V. ]:)ver . : 651 V. Nicolopulo 250, 252 V. O'Brien 374, 428 V. Wisconsin Ky. Co 55 Eutan V. Hinchman 56, 69 Rutlirauff v. Hagenbuch 2(12 Rutty V. Consolidated Fruit Jar Co 55 Ruzicka v. Ilotovy 103 Ryan v. Sams 48 V. Selnitt 37 V. Smith 23 V. Ulmer 205 V. United States 105, 109 V. Wayson 579 V. Wollowitz 327 Livestock & Feeding Co. v. Kelly 672 Ryder v. Cooley 329 V. Hathaway 153 V. Xeitgc 242 Ryerson v. t.'hapman. . .221, 614, 615 Ry lands v. Kreitman 402 Eyle V. Ivnowles Loom Works.. 324 S. Sabel V. Planters' Xat. Bank . . . 439 Sabre v. Smith 113 Safford, Ex parte 76, 91 V. Grout 633 A'. !McDonough fll Sage V. ilemphis 145 V. Purcell - 168 V. Sleutz 320, 330 Sahlman v. Jlills 80 St. Anthony Elevator Co. v. Cnss County 261, 202 V. Princeton ilill Co 205 St. John V. Hendrickson 040 St. Louis, etc., Ey. Co. v. Adams. 305 419 V. Citizens' Bauli..407, 419 V. Higgins 15, 19 [References are to sections.] St. Louis, etc., R. R. Co. v. Kerr. 177 etc., Ry. Co. v. Knight 420 V. Larned 419 etc., R. Co. V. Terre Haute, etc., E. Co 678 V. \^■ynue Cooperage Co. 269 Brewing Assn. v. McEnroe. . 235 488, 614, 608 Hay & Grain Co. v. United States 071 J. & C. R. R. Co. V. Matlier.s. 078 Ry. V. Clark 71 Range Co. v. Kline-Drum- mond Co 502 St. Regis P. Co. V. Santa Clara L. Co 587 Sale V. Lambert 105 Salem India Rubber Co. v. Adams 634 Salisbury v. Stainer 253 Salle V. Light's K.xrs 221 Salmon v. Bennett 641 V. Boykin 189, 404 Falls Mfg. Co. V. Goddard. , 102 10.5, 108, 112 Salomon v. King 89, 473 V. j\IcEae 71 Salter v. Burt 452 V. W^oollams 454 Saltmarsh \. Tutliill 666 Saltus V. Everett 284, 311, 421 Sample v. Pickard 464 V. I'pton 464 Samples v. Guyer 649 Sampson v. Brandon Co 643 V. Townsend 675 Sams V. Stockton 23 Samuel v. Bartee 445 V. Cheney 635 Samuels v. Guin's Estate 207 San Antonio JIachine Co. v. Josey 210 Sanborn v. Chittenden 329 V. Flagler 105, 112 V. Kittredge 399 V. Osgood 646 v. Putnam 3S2 v. Sanborn 634 v. Shipherd 575 Sander v. Savage 2!1, 36 Sanders v. Jameson 476 V. Johnson UC5 V. Keber 324 V. Logue 642 V. MacLean 406, 410, 441 V. JIuegge 621 V. Pepoon 363 V. Wilson 326, 336 Sanderson v. Graves 123, 124 Sandford v. Handy 628 V. ^Vig'Tins Ferry 275 Table op Cases. xci [References are to sections.] Sands v. Taylor 553 Sandwich Mfg. Co. v. Feary..491, 607 V. Robinson 145 San Francisco Bridge Co. v. Bum- barton Land, etc., Co 592 Sanger v. Dun 654 V. French 58 V. Hibbard 19, 20, 23, 26 V. Jesse French Piano Co . . . 327 V. U'aterbury 269 Sansee v. Wilson 368 Santa Clara Co. v. Hayes 681 Saratoga County Bank v. King. . 681 Sarbecker v. State 278 Sargent v. Central Warehouse Co. 423 V. Currier 218, 221 V. Metcalf 329 V. Morris 426 Sari V. Bourdillon 101 Sauerman v. Simmons 203 Saunders v. Phelps Co 664 V. Topp 76 Saunderson v. Jackson 112 Sauter v. Leveridge 651 V. Scrutchfield 48 Sauthofif, Re 640 Savage v. Canning 593 V. Lee 72 V. Robinson 108 V. Salem Mills Co.. 154, 156, 157 Savannah Ice Co. v. American Refrigerator Co 108, 467 Savings Bank v. Burns 663 V. National Bank 678 & Trust Co. V. Bear Valley Co 678 Sawyer v. Dean. .' 552 V. Gerrish 136 v. Hovey 657 V. Lufkin 34 V. Nichols 372 V. Prickett 630 V. Pringle 579 V. Smith 609 V. Taggart C64, 676 V. Ware 55 Medicine Co. v. Johnson. . . . 278 280 Saxe V. Penokee Lumber Co..j. 599 Saxton V. Seiberling 299 Say V. Barwick 42 Savers v. London Glass Co 257 Sayles v. Christie 13, 20 V. Wellman 667 Sayward v. Nunan 401 Sbarbero v. Miller 35 Scales V. Wiley 55 Scammon v. Bowers 141 Scanlan v. Cobb 30, 33 Scanlon v. Warren 664 Scarfe v. Morgan 665 Sceva V. True 34 Schaps V. Lehner 33 Scharff v. Meyer 289 Schell V. Stephens 218 Soheiiectady Stove Co. v. Hol- brook 464 Schenk v. Strong 27 Schermerhorn v. Talman 680 Schidlower v. McCafferty 385 Schiller v. Blyth Fargo Co.. 278, 493 Schlesinger v. Stratton 271 V. West Shore R. R. Co... 424 Schloss V. Feltus 620 V. Joseph 55 Schmertz v. Dwyer 278, 512 Schmidt v. Quinzel 115 V. Rozier 55 V. Thomas 77 Sohmitheimer v. Eiseman 26 Schmitt V. Schnell 585 Schneider v. Kraby 403 V. Norris 112 V. Vogler 106 V. Westerman 274 Schnitzer v. Oriental Print Works 246 Sehoenthaler v. Rosskam 662 Scholefield v. Eickelberger 674 Schollenberger v. Pennsylvania. . 673 Schon-Klinstein Co. v. Snow. . . . 464 School District v. Dauchy 161 V. Hayne 592 V. Howard 661 Schoonmaker v. Kelly 649 Scbopp v. Taft 489 Sohotsmans v. I..ancashire, etc., Ry. Co 532 Schramm v. Boston Sugar Re- fining Co 215 V. O'Connor 628 Schroiber v. Andrews 289 V. Butler 258 Schreyer v. Scott 642 Schrock v. Growl 15 Schroder v. Palmer Hardware Co. 86 Schroeder v. Trubee 203 Schubert v. Herzberg 145 Schuchardt v. Allen 445 Schuff V. Ransom 30 Schujahn, Re 262 Schuitz V. Reader 366 Schumaker v. Mather 634 Schumway v. Rutter 374 Schurmeier v. English 614 Schuyler v. Russ 207 Schuylkill County v. Copley 654 Schwab V. Oatman 321 Schwarting v. Bisland 48 Schwartz v. Church of Holy Cross 73, 77, 483 V. McCloskey 567 XCll Table of Cases. [References are to sections.] Sohwarzschild, etc., Co. v. Savan- nah, etc., Ry. Co 283 Scliweickhart v. Stuewe 487 Scoggin V. Slater 66 Scott V. Carothers 48 V. Drygoods Co 531 V. Eastern Counties Ry. Co, 70 94 V. England 561 V. Geiser 207 V. Hix 218 y. Keeth 212 V. Kittanning Coal Co 407 V. Mann 298 V. ilelady SO, 103 V. ilontague 593 V. Renick 240 V. Surman 317 V. Wells 269 V. Winship 364 Scotten V. State 680 Scovill V. McMahon 661 Scranton v. Clark 131, 218 Screws v. Roach 265 Scrivener v. Great Northern Ry. Co 516 Scroggin v. Wood 271 Scudder v. Bradbury 343, 346 V. Worster 156 Scully V. Albers 378 V. Smith 86, 89 Seaboard Air Line Ry. Co. v. Phillips 424 Seal V. Insurance Co 407 Scale V. Baker 632 Scanor v. ^IcLaughlin 579 Searcy v. Hunter 20 Searle v. Galbraith 3,5 V. Keeves 74 Searlos v. Smith Grain Co 435 Sears v. Shrout 324 V. Wingate 419, 420 Sr:itli V. ^Innrp 261, 275 Seatde Brewing Co. v. Donofrio. 043 Electric Co. v. Snoqualmie Falls Power Co 663 Seaver v. Phelps 30 Sravey v. Walker 367 Sechler Carriage Co. v. Dryden. . 366 Secomb v. Nutt 522. 527, 534 Second N.it. Bank v, Merrill .... 641 V. Walbridge 425 Security Bank v. Luttgen. . .283, 290 Co. v. Saratoga Gas Co 145 Seddon v. Tutop 500b Sedgwick, Damages 221 Seed v. Johnson 500Vi V. Lord 344, 346 Seekonk v, Rehoboth 4,i2 Seeley v. Welles 191 Seeligson v. Philbrick 283, 289 Segelbaum v. Ensminger Seipel V. Insurance Co Seisel v. Wells Seitz V. Brewers' Refrigerator Co. .105. Seixas v. Woods Selby V. Selby Selig V. Rehfuss Sellers v. Hayes Selser v. Roberts Sentman v. Gamble Setter v. Alvey Seward v. Jackson V. Miller 428. Sewell V. Burdick 425, 426, Sexton V. Graham 157, V. Nevers Seymour v. Armstrong V. Cushway 62, v. Newton 503, V. O'Keefe Shackelton v. Sebree 37, Shackett v. Bickford Shacklett v. Polk Shafer v. Lacy V. Russell Shaffer v. Detie V. Rhynders Shambaugh v. Current 203, Shanks v. Whitney Shardlow v. Cotterell Sharman v. Brandt Sharon v. Shaw Sharp V. Carroll V. Hawkins V, Ponce 627, Sharpe v. Bettis Sharpless v. Gummey Shattuck V. Green Shauer v. Alterton Shaul V. Harrington Shaw V. Badger V. Carpenter V. Coffin V. First Baptist Church .... V. Fisher V. Gilbert 613, V. Gilmore 134, V, Lady Ensley Coal Co ... . V. Railroad Co. . . .292, 407, 434, 437, 441 V. Republic L. I. Co v. Smith 167, 240, V. Thompson 34, V. Williams Lumber Co. v. Manville .... Shawhan v. Van Nest .=;."..=;, Sheahan v. Barry 49,5. Shealy v. Edwards 167, 171 Shearer v. Park Nursery Co. . . .' Sheehan v. Allen 30 48 661 637 215 236 200 112 210 643 205 71 678 385 440 440 417 220 464 105 558 360 38 632 674 313 579 13 439 205 613 105 114 381 98 343 640 613 636 218 621 357 460 681 27 177 602 633 135 5.il 410 650 585 ?.(;<) ".S2 666 77 Mr2 .iS.i 269 614 33 Table of Cases. XClll [References are to sections.] Sheehy v. Shinn 664 Sheeran v. Moses 507 Sheets v. Selden 452 Mfg. Co., Re 336 Sheffield Furnace Co. v. Hull Coal Co 280 Sheldon Co. v. Mayers 326, 329 Shellenberg v. Fremont, etc., R. R. Co 426 Shelly V. Mikkelson 507 Shelton v. Ellis 632 V. Franklin 269 V. Gillett 452 V. Hoadley 48 V. Pendleton 48 V. Thompson 71, 86, 117 Shenstone v. Hilton 319 Shepard v. Carpenter 168 V. Mills 593 Shepherd v. Harrison. . .261, 282, 289 290, 305 V. Jenkins 600 V. Kain 196 V. Naylor 420 V. Pressey 76, 89 V. Pybus 229, 231, 232, 248 V. Trigg 378 Shepley v. Davis 148 Sheppard v. New hall 539 V. Union Bank 319 Sherburne v. Shaw 105 Sherman v. Davis 651 V. Mudge 269 V. Rugee 533 V. Transportation Co 131 Sherron v. Humphrey 72 Sherry v. Picken 61 Sherwood v. Neal 42 1 Sheyer v. Pinkerton Const. Co.. 177 Shields v. Anderson 400 V. Pettie 1S8 vShindler v. Houston.. 70, 87, 88, 90 92, 98 Shingleur v. W. U. Tel. Co 5 Johnson & Co. v. Canton Warehouse Co 430 Shipley v. Smith 16 Shipman v. jEtna Ins. Co 360 V. Horton 16 v. Sevmour 637 Shipp V. McKee 20 Shippen v. Bowen 197, 201 Shippev V. Eastwood 667 Shipton V. Casson 277, 461, fiOO Shiretzki v. Kessler 203 Shirk V. Shultz 17 Shirley v! Shirley 113 Shisler v. Baxter. 200, 240 Shivelv V. Semi-Tropic Co 577 Shoolhred v. Roberts 679, 680 Shordan v. Kyler 206 Short V. Tinsley 370 Shoulters v. Allen 33 Shrimpton v. Warmack 461 & Sons V. Philbrick 634 Shropshire v. Burns 13 Shufeldt v. Pease 620 Shuff V. Morgan 305, 307 Shulte v. Hennessy 193 Shultis V. Rice 218 Shuman v. Steinel 48 Shumway v. Rutter 264 Shupe v. Collender 488, 489, 607 Shuttler v. Brandfass 629 Sibley v. Felton 167 V. Hood 378 Sicard v. Buffalo, etc., Ry. Co . . 662 Siddall V. Clark 681 Sidney School Furniture Co. v. Warsaw School District 191 Siedenbach v. Riley 385, 401 Siegel v. Brooke 218 Sievewright v. Archibald 116 Siffken v. Wray .502 Sigafus V. Porter 613 Silkman Lumber Co. v. Hunholz. 90 Silsby V. Boston & Albany R. R. Co 344, 346 Mfg. Co. V. Chico 191 Silver Bow Min., etc., Co. v. Lowry 326 Silverman v. Greaser 042 Simerson v. Branch Bank 354 Simmonds v. Humble 81 Simmons v. Green 451 V. Ingram 642 V. McElwain 48 V. Swift 268 Hardware Co. v. Mullen. ... 89 Simon v. Metivier 115 V. Wood 493 Simond v. Braddon 188 Simons v. Daly 365 Simpson v. Crippin 189, 467 V. Krximdick 79 V. Nicholls 667 V. Prudential Ins. Co 19 V. Shackleford 324 V. Wiggin 638 V. Wrenn 421 Sims V. Alabama Brewing Co.. 681 V. Everhairdt 20, 26 V. James 324, 333 v. McLure 33 V. Norfolk, etc., R. R. Co. . . 279 Sinclair v. Hathaway 241 V. Healy 650 V. Murphy 421 Singer v. Merchants' Transporta- tion Co 283, 285, 635 v. Schilling 648 Mfg. Co. V. Brown 672 XCIV Table of Cases. [References are to sections.] Singer ilfg. Co. v. Clienev. . ,562, 566 V. Cole 336 V. Draper 677, 678 V. Ellington 336, 579 V. Gray 336 V. Graham 324, 336 V. Nash 328 V. iS.immons 650 V. Treadway 579 Sawing Macli. Co. v. Hol- comS 336 Singer ly v. Thayer 191 Singleton v. Bank of Monticello. 664 675 V. Hill 106 Adra. V. Kennedy 631 Sinker v. Coniparet 327 V. Kidder 614 Sinnott v. German-American Bank 672 Sinsheimer v. Whitely 405 Siuton V. Butler 457 Siuux City, etc., Co. v. Trust Co. 668 etc., Ry. Co. v. First Nat. Bank of Fremont 419 Sisson V. Hill 567, 649 Lumber & Shingle Co. v. Blake 476 Skiff V. .Johnson 675 V. Stoddard 604 Skilling V. BoUman 430, 439, 441 SI- illnian Hardware Co. v. Davis. 44S Skinner v. Gunn 445 V. Henderson 679 V. Kerwin Glass Co.... 231, 233 235 V. ilasweU 17 V. :\Iichigan Hoop Co. . . 567, 649 V. Tirrell 48 Skipper v. Stokes 130 Skrine v. Gordon 23 Slade V. Lee 164 Slater v. Smith 105 Slaughter's Admr. v. Gerson. . . . 633 634 Slayton v. Barry 26 V. JIcDonald 593 Sleeper v. Davis 620, 648 V. Pollard 399 V. Wood 203 Sloan V. Carolina, etc., Ry. Co.. 287 478 V. MeCarty 304 V. Wolf Co 608 Sloane v. Kingore 367 V. Shiffer 649 Small V. Stevens 77 Smalley v. Hamblin 55 V. Hendrickson . . .262, 272, 497 Smart v. Batchelder 269 V. White 680 I Smethurst v. Woolaton 590 Smiley v. Barker 123, 124, 452 Smith V. Aldrich 333, 579 V. Arnold 115, 669 V. Baker 242 V. Bank 213 V. Barber 476, 571 V. Barker 522 V. Bean 666 V. Beatty 631 V. Blachley 680 V. Bolles 613 V. Borden 200 V. Brennan 89 V. Brittenham 649 V. Bryan 62, 90 V. Burnham 119 V. Case 667 V. Chadwick 632 V. Champnej' 368 V. Clarke . ". 298 V. Clews 315 V. Coe 250, 253, 489 V. Colby 109, 110 V. CoUiiLs 621 V. Crisman 39 1 V. Dennie 346 V. Evans 10, 269, 669 V. Fields 135 V. Foote 614 V. Friend 156 V. Gilmore 571 V. GI7, 22S Stubbs V. Lund 532 Stuc-key v. ^r-jthes 34 Stufley V. ];ailv 198, 209 Studebaker Bros. Co. v. Mau... 339 Stiider V. Bleistein 207, 489 Studds V. Watson 1U8, 110 StuU V. Hai-i-is 19 Stumpp V. Lynber 203 Sturbridge v. Franldin 48 Sturm V. Boker 629 Sturtevant v. Ballard 300,385 V. Starin 48 Stutz V. Handley 654 Suber V. PuUin 55 Suit V. Woodhall 280 Sullice V. Gradenigo 371 Sullivan >'. Byrne 177 V. llorgan 681 V. Johnson 358 V. JlfMillan 587 T. O'Xeal 106 Summerall v. Thorns 72 Summers v. Bean - 602 V. Brannin 377 V. Hiljbard 861 V. Vaughan 211 Sumner v. Gray 221, 615 V. Hamlet 269 V. McFarlan 324 V. Tvson 246 V. Woods 324 Sun Publishing Co. v. Minnesota Type Foundry Co 189, 462, 473 Surles V. Pipkin 34 Susong V. Mclvenna 343, 346 Sutherland r. Allhusen 190, 457 -Innes Co. v. Chaney 672 Medicine Co. v. Baltimore.. 278 Sutphin V. Crozer 679 Sutton V. Baliou 368 V. Tyrell 193 Suydam \. Clark 116 Swftt V. Shumway 205 Swafford v. Spratt 61 Swain v. Burnette 106 V. SchiefFelin 614 V. Seamens 118, 121 V. Shepherd 270 Swallow V. Emery 304 V. Strong 108, 109 Swan V. Chorpenning 299 Swaun V. Swann 665, 668 Swartwood v. Chance 33, 35 Swartzburg v. Diekerman 389 Swasey v. Vanderlieyden 21 Sweeney v. Coe 359 Sweet V. Cater 602 Sweeting v. Turner 264, 296 Sweetman v. Prince 221 Swett V. Colgate 200 V. Penrice 48 Swift V. Bennett 24 V. Little 672 V. Pacific Jtail, etc., Co.... 426 V. Rounds 212, 637 V. Thompson 360 Switzer v. Skiles 299 Sydnor v. Gee 400 Syers v. Jonas 246 T. Tabor v. Peters 203, 239, 628 Tacoma v. Tacoma L. & W. Co. 613 Coal Co. V. Bradley 208, 488 Taf t. Re 338 V. Sergeant 20 T. Travis 171, 172 Tahoe Ice Co. v. Union Ice Co. . 582 Tailbv V. Official Receiver. .138, 139 145 Talbot V. Pettigrew 464 Paving Co. v. Gorman 489 Talcott V. "Wilcox 360 Taliaferro v. Moffett 669 V. Smiley 71 Tallman v. Franklin 107 Talmadge v. Lane 55, 61 V. Oliver 327, 337 Tancred v. Steel Co. of Scotland. 464 Tanner v. Scovell 534 Tanner Engine Co. v. Hall 571 Tansley v. Turner 88, 513 Tappenden v. Randall 679 Tarbox v. Gr.tzian 168,464 Tarleton v. Baker 679 Tarling v. Baxter 264, 342 Tarr v. Smith 620 Tasker v. Crane Co 476 Tate v. Bates 632 V. Security Trust Co 620 Tatro V. Brower 614 Tatum V. Geist 191 Taussig V. Southern Land Co.. 280 Taylor, Re 19 V. Bell & Bogart Soap Co . . 672 V. Bowers 679 V. BuUen 239 V. Caldwell 161 V. Chester 678 v. Cole 280, 48S V. Farmer 418 V. Great Eastern Ry. Co . . . 71 V. Kymer 318 V. Mississippi Mills 636, 637 V. Mueller 77 V. Plunkett 361 V. Purcell 37, 38 V. Shelton 48 V. Smetten 169 Table of Cases. xcis [References are to sections.] Taylor v. Smith 79, 80, 370 V. Turner 413 Estate 6()4 Taymon v. Mitcliell 608 Teachout ^. Van Hoesen. 628 Teague v. Bass 354 V. Irwin 204 Tebbets v. Hapgood 48 Tedrick v. Hiner 669 Teipel v. Meyer 168, 464 Telford v. Adams 651 V. Albro 483, 493 Telluride Power Co. v. Crane... 205 215, 231, 235 Tempest v. Fitzgerald 74, 85, 91 V. Kilner 67 Temple Nat. Bank v. Louisville, etc.. Oil Co 439 Templeton v. Equitable Mfg. Co. 285 . Tennent-Stribling Shoe Co. v. Roper 666 Shoe Co. V. Stovall & Brand. 636 Tennessee & C. R. Co. v. Dan- forth 193 Ice Co. V. Raine 49 River, etc., Co. v. Leeds.... 237 Tenney v. Cowles 203 Terhune v. Coker 030 Terney v. Uoten 74, 75, 91 Terrell v. Frazier 62 V. Green 354 V. Stevenson 221 Terry v. Belcher 393 V. Bissell 600 V. Wheeler 164, 280 Tesson v. Insurance Co 655 Tetley v. Shand 459 Texas Fruit Co. v. Lane.... 250, 251 Textor v. Orr 373 Thacher v. Moors 323 Thaekrah v. Haas 39 Thalmann v. Texas Star Mills . . 452 Thames Trust Co. v. Beville 109 Thaxter v. Foster 326, 620 Thayer v. Luce 105, 100, 108 Theiss v. Weiss 599 Theobold v. Burleigh 661 Thiedemann v. Goldschmidt. . . . 435 Thierman v. Laupheimer 370 Third Bank v. Armstrong 579 Thirlby v. Rainbow 579 Thomas v. Beals 649 V. City of Richmond 680 V. Cronise 678 V. Drennen 107 V. Hillhouse 368 V. Johnson 640 V. Kerr 115 V. Kingsland 457 V. ICnowles 161 V. Parsons 327 Thomas v. Richards 327 V. Stewart 177 V. Sullivan 381 V. Thomas 239, 269 Mfg. Co. V. Watson 593 Thomason v. Lewis 571 V. Phillips 17 Thompson v. Alger 99 V. Ashton 246 V. Baltimore 524 V. Bertrand 208 V. Conover 265, 511 V. Cummings 678 v. Davios 299 V. Esty 382 V. Fairbanks 662 v. Fargo 426 V. Frakes 71 V. Gaffey 593 V. Gibson 452 V. Harvey 207, 60S V. Libby 046 V. New England Co 29 v. New South Coal Co 105 V. Peck 637 v. Phoenix Ins. Co 629 V. Railroad Co 507 V. Ray 5 V. Rose 620, 628, 636, 637 V. Thompson 121 V. Wilhite 366 V. Williams 421, 666 Co. V. Whitehed 672 Thomson v. Gortner 215 V. Kyle 585 Thorn v. Commissioners of Public \^'orks mi 575 AVhitmarsh v. Walker 61 Whitmore v. South Boston Iron Co 250, 251 Whitney v. Abbott 333, 571, 579 V. Allaire 046 V. Brunette 403 V. Burr 602 T. Eaton 344, 346 V. Farrar 571 \\ ll&yviood 218 V. Lynde 399 V. SiiUon 203 Whittaker, Ex parte 637 Whittemore v. Gibbs 67 \Vhitten v. Fitzwater 637 Whittingham v. Hill 23 Whitwell V. Carter 079 Wichita Bank v. Atchison, etc., Ry. Co 285, 419 Wicker v. Norris 452 Wickes V. Hill 336 to sections.] Wickham v. Martin 326, 620 V. Miller 385 Widoe V. Webb 681 Wieler v. Schilizzi 243 Wiener v. Whij^ple 101, 114, 254 Wier V. Batdorf 106 W iessner v. Ayer 121 Wigand v. Siche! 648 Wiger V. Carr 58 Wight V. Shelby R. R. Co 027 Wigton V. Bowlev 2C2, 2b2, 410 413 Wilbur V. How 299 Wilcox V. Cherry 335 V. San Jose Fruit Packing Co 649 V. Young 1 7 1 Cordage, etc., Co. v. Mosher. 673 Silver Plate Co. v. Green. . 81 Wild V. Harris 603 ■\Mlder V. Stafford 399 V. Wilson 329 Wiley V. Lashlee 395 V. National Paper Co 672 Wilkerson v. Thorp 135 ^Ailkes V. Ferris 92 \^'ilkins V. Brotnhead 275 V. Wilkinson 29 Wilkinson v. Evans 105 V. Hea venrich 113 V. Holiday 164 V. Ketler" 135 V. King 314, 31S V. Taylor Mfg. Co 108 V. Touslev 679 Wilks V. Atkinson Hn V. Davis 175 Willard v. Lull 399 V. Masterton 651 V. Stevens 205, 213 Mfg. Co. V. Tierney 440 Willcox V. .Jackson 42 Willets V. Green 495 Williams v. Adams 269 V. Allen 164, 600 v. Bacon 105 v. Blum Land Co 209 V. Bonner 22 v. Brown 375 V. Burgess 73 V. Cariwnter 143, 002 V. Chapman 274 V. Connoway 296 V. Davis 042 V. Fourth Nat. Bank 043 V. Howard 602 V. Inabnet 30 V. Ingram 207 V. .Tackson 275 V. Lane fifi; V. Leisen 654 Taule of Cases. cvu [References are to sections.] Williams v. Mabee 20 T. ilcl'adden 613, 627, 646 V. Moore 509 V. Morris 101 V. Paine 074 V. Paul 667 V. Porter 327, 403 V. Reynolds 596 V. Robb 489 V. Robinson 103, 113 V. Snebly 621 V. Spurr 631 V. Wilmington, etc., R. R. Co 419 V. Woods 114 Cooperage Co. v. Scofield. . 495 Exrs. y.' Franklin 371 -Hayward Co. v. Brooks.. 55, 71 H. W., Transportation Line V. Darius Cole Trans- portation Co 608 Williamson v. Allison 196, 197 V. Baley 675 V. Berry 167, 317 V. Parley 400 V. Xew Jersey Southern, etc., E. R 145 V. Ringgold 362 V. Russell 650 V. Sammons 218 V. Tyson 445 Willis V. Freeman 662 V. Hoover 679 V. Willis's Adm 264 Willman Mercantile Co. v. Fussy. 283 305 Wills V. Ross 108 Wilmot V. Hurd 210 Wilmoth V. Hamilton 599 Wilmouth V. Patton 450 Wilmshurst v. Bowker 544 Wilson, Re 640 V. Belles 230 V. Burks 649 V. Comer 343, 344 V. Dunville 614 V. Hart 105 V. Hooper 399 V. Howser 641 V. Koblheim 641 V. Lawrence 232, 243 V. Lewiston Mill Co.... 108, 109 114 V. New United States Cattle Eancb Co 215, 613, 646 V. Sbaver 269 V. Smith 371 V. Wall 299 V. Walrath 376 V. Western Fruit Co... 278, 595 Wilstach V. Heyd 107 Wilt V. Ogden 193 V. Welsh 27 Wiltse iT. Barnes 479 Wimp V. Early 61 Winchester v. Charter 641 V. Newton. 467 Electric Light Co. v. Veal.. 678 Wagon Works, etc., Co. v. Carman 329 Wind V. Her 270 Windhaus v. Bootz 641 WindmuUer v. Pope 587 Windsor v. Cruise 271 Winfield v. Dodge 666 Wing V. Chapman 233 V. Clark 264 & Son V. Peabody 399 Winkler v. Patten 203 Winner v. Williams 72 Winship v. Buzzard 55 Winside Bank v. Lound 596, 599 Winslow V. Norton 425 Lanier & Co. v. Leonard... 277 Winward v. Lincoln 664 Wire V. Foster 599 Wirebach v. Bank 33 Wirth V. Roche 631 Wisconsin Brick Co. v. Hood... 237 Fibre Co. v. Jeffris Lumber Co 58 Wiseman v. Vandeputt 518 Wiser v. Lockwood 19 Wisner v. Feld 119 Wiswall, The Charles E 672 Witherow v. Witherow 460 Withers v. Greene 605 V. Reynolds 448 Witman v. Reading 106 Witt V. Cuenod 630 V. East Tennessee, etc., R. Co 287 Wittkowsky v. Wasson 167 Wolcott V. Coimecticut Life Ins. Co 32, 36 V. Hamilton 136 V. Mount 180, 183, 201,205 614 Woldert v. Arledge 548 Wolf V. Dietzsch 483, 493 V. Marsh 585 V. National Bank 169 V. Schlaxiks 592 Wolfenden v. Wilson 54 Wolff Doyer Co. v. Bigler 673 W^olflev V. Rising & Son 369 Wolfskin V. Douglas ■ 71 Womack v. Smith 602 Wong Ko V. Hawaiian Govt. . 164, 600 Wood, Re 640 V. Allen 5 V. Anthony 614 CVlll Table of Cases. [References are to sections.] Wood V. Bell 275 V. Davis 100 V. Garland t)49 V. Loomis 36tj V. Michaiid . . . 250, 252, 253, 561 V. Ross 240 V. Sheldon 218, 600 V. Smith 213 V. Wood's Exr 679 V. Yeatman 533 Reaping & ilowing Machine Co. V. Smith 101 Woodard v. Maatin 651 Woodbridge v. Perkins 360 Woodford v. McClenahan 445 Woodman v. Chapman 44 Woodrow V. Davis 370 WoodruiT v. Berry 299 V. Butler 108 V. Graddy 608 V. Hinman 681 V. Noyes 278 Woods V. Armstrong 668 V. Bugbey 358 V. Faurot 389 V. Hall 298 V. Hull 391 V. JlcGee 156, 158 V. Miller 451, 452 V. Russell 275 V. Thompson 208 Estate, Matter of 48 Woodward v. Edmunds 159 V. Emmons 483 V. Semans 154 V. Smith 168 V. Stearns 670 Woolen V. Erie Bank 290 Woolc-y V. Edson 399 V.' Gaines 30, 33 y. Geneva Wagon Co 327 W^olfe V. Home 189, 544 Woolfort V. Dixie Cotton Oil Co. 672 Woolridge v. Boardman 641 Woolsey v. Axton oil WooUums V. Horsley 631 Woonsocket Rubber Co. v. Loew- enberg 620, 648 Wooster v. Tarr 426 Wooten V. Hinkle 299 V. Walters 466 Wootters v. Kaufman 317 Worcester Mfg. Co. v. Waterbury Brass Co 250, 251, 257, 608 Word V. Cavin 218, 221 V. Vance 27 Wordall v. Smith 378 Work V. Cowhick 101 Worley v. Moore 628 Worman v. Kramer 391 Wornack v. Loar 23 Worrell v. Kinnear Mfg. Co 203 Worth V. McConnell 203 Worthington v. Gwiu 189, 467 Worthy v. Johnson 220 Wrenn v. Morgan 201 Wright, Re 640 V. Bank of Metropolis. .451, 596 V. Barnard . . 27U, :',27 V. Brown (J37 V. Computing Scale Co ... . 490 V. Crawford 1143 V. Crookes 190 V. Dannah II4 V. Davenport GOS V. Fisher 32, 37 V. Grover 306 V. Hart 043 V. Jones 72 v. Lee 672 V. McCormick 378 v. McPike 054 V. Market Bank 35 V. Northern C. R. Co 2S7 V. Roach (J13 V. Solomon 317 V. Tetlow 275 V. Waller 30, 39 V. Wright 640 V. Zeigler 048 & Colton Co. V. Warren. 283, 285 287 Wngley v. Cornelius 548 Wrisley Co., Allen B. v. Mathie- son Alkali Works 404 Wroten's Assignee v. Armat.... 003 Wrought Iron Range Co. v. Campen 673 Wulschner v. Ward 119,008 Wyatt V. Stewart 354 V. Wyatt 390 Wyler v. Rothschild 77 Wvrick V. Missouri, etc., Ry. Co. 663 Y. Yale v. Bond 371 Y^ank v. Bordeaux 379 Yrarwood v. Happy 407 Yates V. Boen 29 V. Lyon 1,3 V. Pym 196, 246 Y'auger v. Skinner 33 Y'eager v. Knight 20 Yeatman v. Savings Institution. 602 Yelland's Case 061 Y'ellow Poplar Lumber Co. v. Chapman 5S2 Y'^enni v. MoNamee 417 Yerkes v. Wilson 2ns Yoch V. Insurance Co 654 Yoe V. Newcomb 55 Y'ork V. Merritt 651 Table of Cases. cix [References are to sections.] York Mfg. Co. V. Cassell.326, 327, 662 V'orksliire Woolcombers' Assn., Re. 138 Youn V. Lament 38, 39 Young V. Burton 602 V. Cole ■ 600 V. Edwards 280 V. Evans 368 V. Leary 161 V. Ledford 71 V. Lehman 435 V. M'Clure 391 V. Matthews.. 142, 262, 265, 269 275 V. Miles 154, 156, 157 V. Pate 395 V. Plattner Implement Co. . 239 V. Salley 324 V. Stevens 33 V. Van Natta 203 & Conant ilfg. Co. v. Wake- field 493, 600, 608 Youngblood v. Birmingham Trust Co 668 Youngstron, Re 662 Yukon Steamboat Co. v. Gratto. 275 Z. Zabriskie v. Central Vermont R. R. Co 489 Zagury v. Furnell 268 Zaleski v. Clark 191 Zaug v. Adams 628 Zann v. Haller 112 Zeigler v. David 48 Zent V. Sullivan 48 Ziegler v. Hendrick 391, 640 Ziehen v. Smith 448 Zimmerman v. Sale 112 V. Zehendncr 100 W. F., Lumber Co. v. Elder. 326 Mfg. Co. V. Dolph 215 Zion Co-operative Mercantile Assn. V. Mayo 673 Zipp Mfg. Co. V. Pastorino 475 Zuck V. MeClure 451, 585 V. Turner Harness Co 19 Zucker v. Karpelee 637 SALES OF PERSONAL PROPERTY. PART I. FORMATION OP THE CONTRACT. CHAPTER I. Definitions and Geneeal Peixciples. Section 1. Terms defined in Sales Act. 2. Explanation of definitions. 3. Sales by deeds. 4. Sales by operation of law. 5. Mutual assent generally necessary. 6. Sales and contracts to sell. 7. Absolute and conditional contracts and sales. 8. Conditions subsequent. 9. Parties to a bargain. Section 1. Teims defined in Sales Act. — I. TERMS DEFINED. Sec. 1. CONTRACTS TO SELL AND SALES.— (1.) A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. (2.) A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. (3.) A contract to sell or a sale may be absolute or conditional. (4.) There may be a contract to sell or a sale between one part owner and another. [1] 2 Formation of the Coxteact. This section differs considerably from the first section of the English Sale of Goods Act/ The reasons for the change in terminology appear in the fol- lowing sections. § 2. Explanation of definitions. — The most fundamental dis- tinction in the law of sales is between a contract to sell in the futiire and a present sale. The distinction is often expressed by the terms " executory " and " executed " sales. Whether a bargain between parties is a contract to ^ell or an actual sale depends upon whether the property in the goods is transferred. If it is trans- ferred there is a sale, an execiited sale, even though the price be not paid. Conversely, though the price be paid there is but a con- tract to sell (not very happily called an- executory sale) if the property in the goods has not passed. The phrase " contract of sale " has been introduced to some extent into our books from the Roman Law'''' and the use of the phrase in the English Sale of Goods Act seems likely to give it a permanent place. Like most terms imported from the Roman Law the words do not exactly fit our conditions. In the classical Roman Law a mere agree- ment could not transfer the title in goods to the buyer.^ The distinction essential in our law between a contract which by its operation immediately transfers title and one which does not could not exist. Every bargain in the Roman Law, therefore, might indifferently be called a contract to sell, a contract of sale, or a sale. This is not so in England and America. As used in ^ ( 1 ) . A contract of sale of goods the contract is called an " agreement is a contract whereby the seller trans- to sell." fers or agrees to transfer the prop- (4.) An agreement to sell becomes erty in goods to the buyer for a, a sale when the time elapses or the money consideration, called the price. conditions are fulfilled subject to There may be a contract of sale be- which the property in the goods is to tween one part owner and another. be transferred. (2.) A contract of sale may be ab- " Blackburn's adoption of the phrase solute or conditional. for the title of his book on sales is (3.) Where under a contract of probably chiefly responsible for the sale the property in the goods is currency of the expression. Black- transferred from the seller to the burn borrowed it from Pothier, ex- buyer the contract is called a sale; tracts from whose Contrat de Vente but where the transfer of the prop- were translated and included by the erty in the goods is to take place at English author in his book, a future time or subject to some '^JToyle, Contract of Sale in the condition thereafter to be fulfilled Civil Law, 3. Definitions and General Principles. 3 the Sale of Goods Act the term includes both contracts to sell and executed sales,^ but in the decisions it is sometimes used as the equivalent of sale only.* The meaning conveyed by the term is thus imcertain and its use is. therefore, better avoided. § 3. Sales by deeds. — Either a contract to sell goods or a sale may be by deed as well as by parol. Such transactions are not usually carried out with the formality of a deed, but general as- signments under seal of a debtor's entire property including goods are common, and bills of sale of particular articles are not infre- quently made imder seal in jurisdictions where seals still have their common-law effect. In such cases reference must be had to the law governing covenants and deeds of conveyance to determine how the effect of the transaction differs from a parol agreement of the same tenor. § 4. Sales by operation of law. — There are certain cases where the law transfers title to goods or imposes an obligation upon the owners to transfer it irrespective of any agreement of the parties. These cases are not regarded as sales or contracts to sell, although the obligations are similar in legal effect. Thus where a defend- ant pays a judgment in trespass,® trover,'' or detinueJ for the full value of the plaintiff's goods, the title to the goods passes to the defendant.® Again in certain cases one who has been wrongfully dispossessed of his goods may waive the tort and recover the value of the goods on the theorj^ of a fictitious sale.® The election of the plaintiff to waive the tort in effect makes the wrongdoer the rightful owner of the goods. These are instances of actual trans- » Section 62 so defines it. L. E. A. 42, 42 Am. St. Eep. * " Inasmuch as a sale is a contract 424. or agreement it is frequently spoken '"The theory of the judgment in of as a ' contract of sale,' or an an action of detinue is that it is a ' agreement of sale,' two phrases kind of involuntary sale of the plain- •which in the law mean no more and tiflf's goods to the defendant." Ex no less than the word ' sale.' " White parte Drake, 5 Ch. D. 866. V. Treat, 100 Fed. Rep. 290, 291. In 'As to whether satisfaction of the Low V. Pew, 108 Mass. 347, 349, 11 judgment is necessary in order to Am. Rep. 357, the term is also used effect a. transfer of title, see Ames, as meaning sale as contrasted with The Disseisin of Chattels, 3 Harv. L. agreement to sell. Rev. 326; Miller v. Hyde, 101 Mass. = Jenkins Cent. Cas. No. 88. 472, 37 N. E. 760, 25 L. R. A. 42, 42 "Brinsmead v. Harrison, L. E. 6 Am. St. Rep. 424. C. P. 584, 588; Jililler r. Hyde, "Keener on Quasi-Contracts, 159 161 Mass. 472, 37 N. E. 760, 25 et seq. 4 POEMATION OF THE C'OXTEACT. fers of title without agreement of the parties. Instances of an obligation to transfer title similarly imiDosed by law may be found wherever one who has voluntarily parted with a title has a right to regain it because of fraud, mistake, duress, or nonperformance of an obligation upon which the right to the goods depended.-"' Where rescission of executed sales is allowed for breach of war- ranty, the converse case, an obligation to take title, is presented.''' § 5. Mutual assent generally necessary. — Save in exceptional cases sales and contracts to sell are based on mutual assent, and, therefore, the intention of the parties determines the nature and terms of the bargain. The princij)les of mutual assent which govern all simple contracts find illustration here. In the forma- tion of a bargain intention of the parties does not mean secret intention nor generallv even intention manifested to third persons, but only the intention manifested to the other party. If the offerer understood " the transaction to be different from that which his words plainly expressed, it is immaterial, as his obligations must be measured by his overt acts.'''" An extreme illustration of this principle is furnished by an offer to buy or sell sent by telegraph, and owing to a mistake of the telegraph company, delivered to the person addressed with some of the terms changed. An accept- ance in good faith by the latter creates a binding bargain, accord- ing to the weight of authority.-"'' By selecting the telegraph as an agency of communication the offerer makes himself responsible for the offer actually delivered. So where the parties made a sale of a stock of merchandise except " dry goods," and dispute afterward arose as to what was included within the exception, it was held proper to instruct the jury that the meaning was to prevail against "See infra, § 567 et seq. 72 Miss. 1030, 18 So. 425, 30 L. R. A. "See infra, § 008. 444, 48 Am. St. Rep. 004; Pepper v. "Jlansfield r. Hodgdon, 147 Mass. W. U. Telegraph Co., 87 Tenn. 554, 304, 17 N. E. 544. 11 S. W. 78:!, 4 L. R. A. 600, 10 Am. "W. U. Tel. Co. r. Shotter, 71 Ga. St. Rep. 699. If the mistake was evi- 760; W. U. Tel. Co. v. Flint River dent upon the face of the telegram Co., 114 Ga. 576, 40 S. E. 81.5; Ayer or kno-wn to the receiver, he cannot, r. W. U. Tel. Co., 79 Me. 493, 10 Atl. however, hold the sender bound by 495, 1 Am. St. Rep. 353; Haubelt v. its terms. Germain Fruit Co. v. Eea & Page iliU Co., 77 Mo. App. \Y. U. Tel. Co.. 137 Cal. 598, 70 Pac. G72. But see contra. Postal Tel. Co. 658, 59 L. R. A. 575; Central of r. Sehaefer, 110 Ky. 907, 62 S. W. Georgia Ry. Co. v. Gortatowsky, 123 1119; Shingleur v. W, U. Tel. Co., Ga. 366, 51 S. E. 469. Definitions and General Peinciples. 6 either party in whicli he had reason to suppose the words were used.-'* With such cases should be compared the well-known case of Eaffles v. Wichelhaus.^° In that case the plaintii! contracted to sell cotton "to arrive ex Peerless" from Bombay. There were two vessels of this name, one of which sailed from Bombay in October, the other in December. The plaintiff intended the latter and the defendant the former. It was held that there was no contract binding the parties. In this case it will be noticed that each party had used words apt to express his meaning, and, there- fore, could properly insist upon that meaning. If a reasonable man in the position of the parties ought to have known that " ex Peerless " under the circumstances in which those words were used could only refer to one of the ships, the decision should have been different. But where wholly ambiguous words are used, if the parties reasonably use or understand the words in different senses, there is no contract. -"-^ § 6. Sales and contracts to sell. — The ordinary cases with which the law has to deal are either cases of a present transfer of title or of contracts that the seller will thereafter make a transfer of title. An intermediate class, however, is possible. The seller may agree now, that the property in the goods shall pass at some time in the future without further volition on his part. In an ordinary contract to sell the seller agrees that at a future time he will assent to the transfer of the property. In the inter- mediate case the assent to the transfer is given at the time the bargain is made, but the transfer is not to be immediate. The distinction is analogous to that between a present grant of an estate "Wood V. Allen, 111 Iowa, 97, 82 Pac. 101; Lamar Elevator Co. v. N. W. 451. See also Smith v. Craddock, 5 Col. App. 203, 37 Pae. Hughes, L. R. 6 Q. B. 597; Preston 950; Hartford, etc., K. R. Co. v. V. Luck, 27 Ch. D. 497; Van Praagh Jackson, 24 Conn. 514, 63 Am. Dec. V. Everidge, [1902] 2 Ch. 266; 177; Rowland v. New York, etc., R. Thompson °, Ray, 46 Ala. 224; New- R. Co., 61 Conn. 103, 23 Atl. 755, 29 some V. Brazell, 118 Ga. 547, 45 S. E. Am. St. Rep. 175; Rupley r. Dag- 397; Phillip v. Gallant, 62 N. Y. gett, 74 111. 351; Brant v. GaUup, 5, 256; Tucker r. Preston, 60 Vt. 473, 111. App. 262; Clay v. Rickets, 66 11 Atl. 726; J. A. Coates & Sons v. Iowa, 362, 23 N. W. 755; Hogue v. Buck, 93 Wis. 128, 67 N. W. 23. Mackey, 44 Kan. 277, 24 Pac. 477; 1=2 H. & C. 906. Frazer v. Small, 59 Hun, 619; Cape "Falck V. Williams, [1900] A. C. Fear Lumber Co. v. Matheson, 69 176. See also Peerless Glass Co. v. S. C. 87, 48 S. E. 111. See further Pacific Crockery Co., 121 Cal. 641, 54 infra, § 653 et seq. 6 FOEMATIOX OF THE COK'TEACT. in remainder in real property and a contract to convey the prop- erty at the termination of the particular estate. Whether this in- termediate kind of transaction should be classified as a sale or a contract to sell is open to argument, but it seems to partake more of the nature of a sale than a contract in that title is transferred by force of the original bargain and the seller is not under an obligation to make the transfer in the future. This designation is, moreover, in harmony with the general usage exemplified in the term " conditional sales," which furnish the only common illustration of these bargains. There seems to be little judicial discussion throwing light upon the subject, though the matter has been touched upon by text-writers. It is probable, in view of the general assumption to this effect, that at least so far as con- cerns goods tmspecified at the time of the bargain some subsequent act of appropriation by the seller is necessary to transfer the property in the goods even though the parties expressed an in- tention that title should pass when the goods became specific or at some other time.-''^ Where goods are specified at the time of the bargain it seems possible to create a situation where the property in the goods will pass at a future time without action. This is true of conditional sale."** And it seems possible to create estates in remainder in specific chattels, which will vest the property in the remainderman at the appointed time.^'' § 7. Absolute and conditional contracts and sales. — As in every other kind of contract, so in a contract to sell there may be in- serted such conditions as the parties agree upon. Even though no conditions are expressed, they may be implied; for instance, that the property shall not be transferred until the price is paid, or vice versa. Similarly conditions may accompany a sale. Though the property is transferred by a sale, obligations may be still outstanding and unperformed by the seller, as an obligation to do work upon the goods or an obligation to deliver them, and such obligations like other contractual obligations may be condi- tional either by agreement of the parties or by implication of law. But not only may these subsidiary obligations in a sale be con- ditional but the transfer of the legal title itself may be. The "Seem/ra, §§ 132, 274. "Gray on Perpetuities (2d ed), " See infra, § 332. § 789 et seq. Definitions and Geneeal Peinciples. 7 typical case of conditional sale is a sale in which the transfer of title is conditional upon the payment of the price. Though sales upon other conditions may readily be imagined, the practice of selling goods with a retention of the title until payment of the price is so common that the ordinary meaning of the term " con- ditional .sale " is confined to sales upon this particular condition. In such sales the goods are habitually delivered to the buyer but the title retained by the seller until payment. These cases pre- sent, as was said in the previous section, a typical case of a sale to take effect in the future by force of its ovm terms without fur- ther expression of assent by the seller, or indeed in spite of his dissent.** § 8. Conditions subsequent.— A sale may be subject to a con- dition subsequent, as well as to a condition precedent. A con- dition precedent makes it necessary that something shall happen prior to the vesting of the property in the buyer. A condition subsequent divests by its happening a title which has already vested. The typical case of this sort is a contract of " sale or return." In such a transaction the property in the goods vests in the buyer subject to an option on his part to return them within a specified or reasonable tirae.^^ A contract to sell may in terms at least be subject to a condition subsequent, but the legal effect of such a condition is generally that of a condition precedent. Thus, if A. agrees to sell B. goods on January 1st, subject to a proviso that if war is declared before that date the contract shall be thereby terminated, the contract is by its terms to exist until and unless something happens, which will thereupon terminate the contract. But the legal effect of this bargain is not altered for any purpose except pleading if it be put with a condition precedent as follows: A. agrees to sell and B. to buy goods on January 1st, if war has not been previously declared. Other con- ditions subsequent in form in contracts may similarly be restated in the form of conditions precedent. This results from the fact that there can rarely be any material difference between the ter- mination or divesting of a contract by a condition subsequent on the one hand and the impossibility of liability arising on the con- tract because a condition precedent has not happened and cannot "See infra, § 332. "See infra, §§ 270-273. 8 !Foe:\iatioit of tub Conteact. happen on the other. It is only where a transfer of property, whether real or personal, has been made that conditions subse- quent become important. As between the parties there seems no reason to question the possibility of making any condition subsequent to a sale that may be agreed upon, provided that the object of the condition is not against public policy." Where the rights of third parties be- come involved, however, it seems obvious that some limitation must be put upon the agreement of the parties. Thus, if in order to prevent retail dealers from cutting prices, manufacturers should sell goods to dealers, not with a contract that the dealer should not sell below a certain price, as is commonly done,^^ but with a con- dition subsequent that in case of such a sale or attempted sale, the property should revest in the manufacturer, it may be doubted whether the manufacturer could maintain any right against the subpurchaser even though the court did not regard the attempt of the manufacturer to maintain prices as contrary to public policy. § 9. Parties to a bargain. — A man cannot ordinarily buy his own goods, though there may be at least apparent exceptions to this rule On an execution sale a debtor may buy his own goods, and the rules which forbid trustees and other fiduciaries from buying in their individual capacity' property which they hold as fiduciaries are based rather on equitable than legal difiiculiies. It is doubtless true that in any purchase of his own goods, no transfer of title can take place. All that is possible is to relieve the goods or the owner of them from the claims of others. This may be the true explanation also of a sale by one joint owner to another, since each joint o-\vner is supposed to own per tout as well as per mir. But whatever may be the essence of the transfer there is no question as to the possibility of one part owner vesting with his rights of property another part owner. ^In Lilienthal v. Suffolk Brewing '"See infra, § 674; Bobbs-ilerrill Co., 154 Jlass. 1S5, 28 F. E. 151, 12 Co. c. SuL-lluuburg, 131 Fud. Rep. 530; L. R. A. 821, 26 Am. St. Rep. 234, Glarst r. Hall & Lyon Co.^ ITU ilass'. a sale was made with the condition 58B. 01 X. E. 219, 55 L. R. A. uJl, subsequent that if the price named and note, differed from the market price, the sale should be void. CHAPTER 11. Capacity of Parties. Section 10. Provisions of Sales Act as to capacity. 11. Infant's capacity, general rule. 12. Voidable means valid until avoided. 13. Infant's privilege is personal. 14. Whether the privilege may be exercised against a subsequent pur- chaser in good faith. 15. How disafiirmance may be made. IG. When the privilege may be exercised. 17. The whole transaction must be disaffirmed. 18. Other consequences of disaffirmance. 19. Restoration of consideration. 20. Ratification. 21. Liability for necessaries. 22. What are necessaries. 23. What are not necessaries. 24. Money advanced for the purchase of necessaries. 25. Previous supply. 26. False representations of age. 27. Other false representations. 28. Insane persons; early law. 29. Lunatics' transaction void. 30. Lunatics' transactions voidable. 31. Voidable against bona fide purchaser. 32. Ratification and disaffirmance. 33. Lunatics' contracts valid in some cases. 34. Necessaries. 35. What constitutes insanity. 36. During guardianship lunatic's bargains are void. 37. Drunkenness, when it incapacitates. 38. Drunkards' bargains voidable. 39. Effects of drunkards' bargains. 40. Bona fide purchasers. 41. jSTecessaries. 42. Fraud upon intoxicated persons. 43. Married women. 44. Rights and liabilities rinder contracts. 45. Effects of attempted transfers. 46. Modifications in equity. 47. Modern statutes. 48. Agency of wife for husband. 49. Corporations. [9] 10 Formation of the Conteact. § 10. Provisions of Sales Act as to capacity. — Sec. 2. CAPACITY — LIABILITY FOR NECES- SARIES.— Capacity to buy and sell is reflated by the general law concerning capacity to contract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person vsrho by reason of mental incapacity or drunkenness is in- competent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery.^ The classes of person, who by the general law have a limited capacity to contract and to transfer and acquire property are Infants, Insane persons, Drunken persons. Married women, Corporations. § 11. Infant's capacity, general rule. — An infant, that is a minor, is not wholly incapable of contracting, or of transferring or holding property, but the law attaches to the bargains which he makes the right to avoid them.^ By statute in England^ this rule is changed and contracts for the sale of goods other than necessaries to infants are made absolutely void. This legislation has not, however, been followed in the United States. It was also formerly frequently stated that all contracts with an infant which were necessarily disadvantageous to the infant were abso- lutely void.* The contracts usually included under this heading, 'This section follows section 2 of for hia advantage. See Ketchum v. the English Act except that the Faircloth-Segreet Co. (Ala.), 46 So. words " the sale and " which pre- 476. cede -the last word in the section are "37 & 38 Vict., c. 62, commonly omitted as introducing a. possible called the Infants' Belief Act. It is ambiguity. noticeable that this statute makes " See cases below, passim. In Ala- void only sales to infants, not sales bama by Civil Code (1896), J 833, by them. the court may relieve an infant of •< See 1 Parsons on Contracts, *295, the disabilities of nonage, if it seems note (u). Capacity of Parties. 11 howeTer, were not sales or contracts to sell,' and the best modern authorities treat all the contracts of an infant as voidable, not void.® The fact that money or property transferred by an infant was given him for the purpose by a third person does not prevent him from avoiding the transaction.'^ § 12. Voidable means valid until avoided. — Most of the disputed questions in the law of infancy turn upon the legal meaning of the word " voidable " as applied to an infant's acts. The natural meaning of the word imports a valid act which may be avoided, rather than an invalid act which may be confirmed, and the weight of authority as well as reason point in the same direction. More- over, so far as executed transfers of property are concerned the authority of the decisions clearly supports this view.® As to executory contracts to sell, a distinction has been sometimes taken, and the doctrine has been laid down that such bargains are wholly invalid until confirmed.® This distinction has been severely criti- cised,^" and must be regarded as unfounded. Probably the courts which first adopted it meant little more than this: An executed sale transfers title and a transfer of title is an important thing even though it may be avoided; on the other hand an executory contract is only important if it is ultimately performed or creates a liability for nonperformance. ISTow inasmuch as the perform- ance of the contract by the infant or his liability for nonper- formance are wholly dependent upon his own choice until and unless he ratifies the contract after coming of age, it seems accu- rate to say that there is until then no contract. But though the distinction is doubtless fine between no contract and a contract ° See 1 Parsons on Contracts, *295. are collected in 16 'Am. & Eng. "See 18 Am. St. Eep. 574, note; Encyc. (2d ed.) 282. Wald's Pollock on Contracts (3d Am. "Morton v. Steward, 5 111. App. ed.), 60. 533, 535; Minock v. Shortridge, 21 ' Thornton v. Holland, 87 Miss. 470, Mich. 304, 315; Edmunds v. Mister, 46 So. 19. 58 Miss. 705; Edgerly v. Shaw, 25 'Roof V. Stafford, 7 Cow. 179; N. H. 514, 516, 57 Am. Dee. 349; Johnson v. Packer, 1 Nott &, McC. 1. State v. Plaisted, 43 N. H. 413. But The numerous decisions as to an in- see Gillenwaters v. Camphell, 142 fant's conveyance of real estate, Ind. 529, 534, 41 N. E. 1041. which cannot be distinguished on "See the able note in 18 Am. St. principle from a sale of personal Rep. 573, 579. property, might also be cited. They 12 FOEIIATION OF THE CoNTKACT. which the promisor may perform or not at his pleasure, it is of legal importance. In the case of a note or formal document this is obvious. If the note has no validity until confirmed it is hard to explain how it can be negotiated, and similarly a covenant if it has any validity as such must derive it from the sealing and delivery when it was made, not from a subsequent parol ratifi- cation. Ratification may and does deprive the infant of a right to avoid his deed,^-' but it cannot fairly be regarded as the making of it. Even in the case of simple .contracts, though the matter is less obvious the same principle holds. If an infant's executory promise amounts to nothing until ratified it is impossible to see how it can be consideration for the counter promise of an adult, but that it is so was early and conclusively settled.-'" Again when an infant's promise is ratified the action is brought on the original promise. Unless that promise had then some legal validity this practice is not defensible. In other ways, as will be seen from what follows, it is important to make the distinction in question. § 13. Infant's privilege is personal. — The right to avoid his contracts and conveyances is given an infant for his protection, and should not be stretched beyond what his needs require. There- fore, the right is confined to the infant himself or his legal repre- sentatives.-'* iN^either creditors-'^ nor trustees or assignees in bankrupt cy-'^' nor assignees by purchase^*^ are included in this designation, but heirs" or personal representatives-'* are, and probably a guardian.-'® "Irvine v. Irvine, 9 Wall. 617. Shaffer v. Detie, 191 Mo. 377, 90 "Holt V. Ward Clarencieux, 2 S. AY. 131; Bordentown f. Wallace, Strange, 937; At-ivell r. Jenkins, 163 50 N. J. L. 13, 11 All. 267; Beards- Mass. 362, 40 N. E. 178, 28 L. R. A. ley v. Hotchkiss, 96 N. Y. 201; and 694; Union Life Ins. Co. v. Hilliard, cases cited in the following notes. 63 Ohio St. 478, 491, 59 N. E. 230, "Kingman v. Perkins, 105 ilass. 81 Am. St. Rep. 644; O'Rourke i. Ill; Yates r. Lyon, 61 N. Y. 344. .John Hancock Ins. Co., 23 R. I. ■= Mansfield r. Gordon, 144 :\Ia33. 457, 462, 50 Atl. 834, 57 L. R. A. 168, 10 N. E. 773; Sayles v. Christie, 496. 187 111. 420, 438, 58 N. E. 480. '' Trustees v. Anderson, 03 Ind. "Riley v. Dillon, 148 Ala. 283, 41 367; Holmes v. Rice, 45 Mich. 142, So. 768. 7 N. W. 772; Monaghan r. Agricul- " Gillenwaters r. Campbell, 142 ture Ins. Co., 53 Mich. 238, 18 N. Ind. 529, 41 N. E. 1041; Harvey r. W. 797; Harvey t'. Briggs, 08 Miss. Briggs, 68 Miss. 60, 8 So. 274. 10 CO, 8 So. 274, 10 L. R. A. 62; L. R. A. 62; O'Rourke r. Hall, 38 Capacity of Paeties. 13 § 14. Whether the privilege may be exercised against a subse- quent purchaser in good faith.— Though the transaction is merely voidable, it is unlike sales voidable for fraud or other equitable ground in this respect : a hona fide purchaser for value without notice that the seller acquired title from an infant cannot, at com- mon law, retain the goods if the latter elects to rescind his trans- fer of title.^°. The personal privilege of the infant, being a legal right, can be exercised against any one. This rule has, however, been changed in the Sales Act.^^ which makes no exception to the rule that a hona fide purchaser for value from one who has a void- able title acquires a good title. § 15. How disaffirmance may be made. — Any act which clearly shows an intent to disaffirm a contract or sale is sufficient for the purpose. Thus a notice by the infant of his purpose to disaffirm^^ a resale of goods previously conveyed by him,"^ or a tender of goods conveyed to him,^* or a plea of infancy in an action upon the infant's obligation,""* is sufficient. An action to recover goods transferred is, however, probably insufficient without previous N. Y. App. Div. 534; Walton v. Gaines, 94 Tenn. 420, 29 S. W. 458; Veal V. Tortson, 57 Tex. 482. "Jefford V. Ringgold, Ala. 544; Shropshire ■;;. Burns, 46 Ala. 108; Parsons r. Hill, 8 Mo. 135; Tilling- hast V. Holbrook, 7 E. I. 230. " Chandler t\ Simmons, 97 Mass, 508, 93 Am. Dec. 117. Compare Ir vine's Heirs v. Crockett, 4 Bibb, 437; Oliver v. Houdlet, 13 Mast 237. '"Hill V. Anderson, 13 Miss. 216 Downing v. Stone, 47 Mo. App. 144 Similarly in the case of real estate, Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409 ; Buchanan v. Hub bard, 96 Ind. 1 ; Jenkins v. Jenkins 12 Iowa, 195, 200; Brantley v. Wolf 60 Miss. 420; McMorris v. Webb, 17 S. C. 558, 43 Am. Kep. 629. And a purchaser for value of an infant's note will be defeated by a plea of infancy. Howard v. Simpkins, 70 Ga. 322. ^'Sec. 24. See infra, § 348. ^Long V. Williams, 74 Ind. 115; Roberts v. Wiggin, 1 X. H. 73, 75, 8 Am. Dec. 38. =» State V. Plaisted, 43 N. H. 413; Chapin v. Shafer, 49 N. Y. 407 ; State V. Howard, 88 N. C. 650. These were eases where an infant sold personal property which he had previously mortgaged. There are numerous de- cisions to the same effect where an infant makes a conveyance of real estate which he had previously con- veyed by deed or mortgage. See 18 Am. St. Rep. 665. ^*Hoyt I. Wilkinson, 57 Vt. 404. ^' Sparr v. Florida Southern Ry., 25 Fla. 185, 6 So. 60; Strain v. Wright, 7 Ga. 568; Sohrock r. Growl, 83 Ind. 243 ; Freeman v. Nichols, 138 Mass. 313, 314. 14 FOEMATION OF THE CoNTEACT. demand or other indication of disaffirmance.^*' Though a sale voidable for fraud may be thus avoided,"' the case may be distinguished on the ground that the fraud is itself a wrong, and if the remedy is practically convenient and gives effectual relief, the ^vrongdoe^ should not be heard to complain. § 16. When the privilege may be exercised. — It was early settled that an infant's conveyance of realty could be avoided only after he attained his majority, though it has been said he may enter during his minority and receive the rents and profits. ^^ In the case of personal property it is well settled, however, that a sale may be avoided during his minority by an infant seller^' or " It is the prevailing though not uniform rule in regard to real estate conveyed by an infant that he may bring ejectment or other proceeding to regain possession without pre- vious demand. 18 Am. St. Rep. 067, 668; Smith i\ Eyan. 191 N. Y. 4.32, 84 jSr. E. 402. So in Stack v. Cava- naugh, 67 N. H. 149, 153, 30 Atl. 350, an action for the recovery of money, the action \vas held maintain- able without previous demand. x\nd an infant was allowed to dis- affirm a relca--e given by him by merely bringing an action on the claim released in St. Louis, etc., Ry. V. Higgins, 44 Ark. 293. But in Betts r. Carroll, 6 JIo. App. 518, it was held that replevin of personal property would not lie unless there had been some act of disaffirmance before the action. This decision is questioned in 18 Am. St. Rep. 668, but as to actions sounding in tort it seems sound on principle and rea- sonable from a practical standpoint. An action of tort should not lie until a tort has been committed; and until disaffirmance by the infant retention of the property is not wrongful. It is anomalous if bring- ing the action itself gives rise to the cause of action, or an essential ele- ment of it. Nor should the fiction of relation be pressed so far as to enable the infant to make the de- fendant a tort-feasor in the past. See Crude v. Curtis, 183 Mass. 317, 67 X. E. 317, 62 L. E. A. 755. '-' See infra, § 567. -' See cases cited in 18 Am. St. Rep. 670, note; Watson r. Ruderman, 79 Conn. 687, 66 Atl. 515; Wallace v. Leroy, 57 W. Va. 263, 267, 50 S. E. 243', 110 Am. St. Rep. 777. But see Chandler i . Simmons, 97 JIas.s. 508, 610, 93 Am. Dec. 117. •" Shipman v. Horton, 17 Conn. 481; Shipley v. Smith, 162 Ind. 520, 52S, 70 N. E, 803; Beickler v. Guen- ther, 121 Iowa, 419, 422, 96 N. W. M!)5 ; Bailey v. Bamberger, 11 B. lion. 113; Towle ■^. Dresser, 73 Me. 252 ; Bloomingdale v. Chittenden, 74 Mich. COS, 42 N. W. 166; Starr v. Watkins, (Neb.) Ill N. W. 303; Carr r. Clough, 26 N. H. 280, 59 Am. Dec. 345; Stafford v. Roof, 9 Cow. 626; Bool. V. Mix, 17 Wend. 119. 31 Am. Dec. 285; Bartholomew v. Fin- nemore, 17 Barb. 428. See also Miller „. Smith, 26 Minn. 24S, 2 N. W. 942, 37 Am. Rep. 407 ; Chapin j;. Shafer, 49 N. Y. 407. Capacity of Parties. 15 buyer.^" Though an infant may thus avoid his sales, purchases, or contracts during infancy he can make no effective ratification until he becomes of age,''* for an infant's ratification clearly can be no more effectual than his original bargain. § 17. The -whole transaction must be disaflBrmed. — An infant cannot disaffirm so much of a transaction as is unfavorable to. him and treat the remainder as effectual. If he disaffirms his obligation to pay the price, he thereby necessarily disaffirms his title to the consideration he received for that obligation. ^^ If he disaffirms his obligation to pay for goods delivered to him upon a conditional sale, he thereby forfeits any title and right to the possession of the goods which the bargain gave to him.^^ Similarly if he purchases property and mortgages it back for the price, if he avoids the mortgage he avoids his own title to the property,^* »°Eiley v. Mallory, 33 Conn. 201; Rice V. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Eep. 53 ; Robinson v. Weeks, 56 Me. 102, 107; Edgerton v. Wolf, 6 Gray, 453 ; McCarthy v. Hen- derson, 138 Mass. 310; Hall v. But- terfield, 59 N. H. 354, 357, 47 Am. Eep. 209; Hoyt v. Willcinson, 57 Vt. 404. " Chandler v. Simmons, 97 Mass. 508, 510, 93 Am. Dec. 117. And see infra, § 20. ""Strain v. Wright, 7 Ga. 568 Thomason v. Phillips, 73 Ga. 140 Carpenter v. Carpenter, 45 Ind. 142 Shirk V. Shultz, 113 Ind. 571, 15 N. E. 12; Badger v. Phinney, 15 Mass. 359, 8 Am. Deo. 105; Fitts v. Hall, 9 2Sr. H. 441; Heath v. West, 28 N. H. 101; Skinner v. Maxwell, 66 N. C. 45; Wallace v. Leroy, 57 W. Va. 263, 267, 50 S. E. 243, 110 Am. St. Rep. 777. In Evans v. Morgan, 69 Miss. 328, 12 So. 270, an infant engaged in trade became indebted for merchandise and when sued for the price avoided liability by pleading in- fancy. Thereafter he made a fraudu- lent sale of his property includin,!? the merchandise in question to his father. The sellers of the merchan- dise were allowed in a suit in equity to reclaim the property and because unable to identify it, because mingled with other property to subject the whole to u. lien for its value. So in Betts V. Carroll, 6 Mo. App. 518, creditors of the seller were allowed to attach property in the infant's hands after disaffirmance. In Drude V. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. R. A. 755, both parties were infants. The buyer who had paid debt as. is generally keld sufficient to avoid the bar of the Statute of Limitations ought more clearly in tho case of infancy to determine the right to avoid an obligation. But the weight of authority is otherwise,"" though many of the decisions are early ones, made at, a time Avhen the legal nature of an infant's contract had not yet been clearly formu-lated. A promise made to a third person has also been held insufficient.^^ § 21. Liability for necessaries^ — It is well settled that an infant- is liable for goods that are necessary, considering.- his position and station in life. This liability, though often treated as arising from the promise of the infant, seems to be rather a quasi-con- tractual obligation. This is sho-^vn by several classes of cases. An infant is liable not for the price he may promise to pay, but for the actual value of the necessaries f- he is liable even though he 428; Hatch v. Hatch's Estate, 00 Vt. 160, 13 Atl. 791. See also Sayles v. Christie, 187 HI. 420, 4iu, 58 N. E. 480. *" Ridgeway v. Herbert, 150 j\Io. 600, 614, 51 S. W. 1040, 73 Am. St. Rep. 464. "Thrupp r. Eielder, 2 Esp. 028; Kendrick f. Neisz, 17 Colo, 506, 30 Rae. 2-15; Catlin r. Haddox, 49 Conn. 492, 44 Am. Rep. 249; Ford v. Phillips, 1 Pick. 302; Hale r. Ger- rish, 8 N. H. 374; Baker i. Kennett, 54 Jlo. 82; Goodsell r. Myers, 3 ^A'end. 479. Contra, American Mtge. Co, V. -Wright, 101 Ala, 058, 14 So. 399; Snyder r, Gerlclve, 101 Mo. App. 647, 74 S. W. 377, Where a pay- ment was made after her majority by an infant but it appeared to be made as a, matter of bounty, not in pursuance of an obligation, it was rightly held . no ratification in Par- sons v. Teller, 188 N, Y. 318, 80 N. E. 930. "Bigelow r. Grannis, 2 Hill, 120; Sayles v. Christie, 187 HI. 420, 441, 58 N. E. 480; Chandler v. Glover's Adm., 32 Pa. St. 509. ''- An infant " is held on a prom- ise implied by law, a,nd not strictly, speaking on his actual promise. The law implies the promise to pay from the necessity of his situation just as in the case of a lunatic. In other words, he is liable to pay only what the necessaries were reasonably worth, and not wliat he may im- providently have agreed to pay for them," Trainer r, Trumbull, 141 Mass. 527, 530, N. E. 701; Hyer v. Hyatt, 3 Cranch C. C. 270; Gregory V. Lee, 04 Conn. 407, 30 Atl. 53, 25 L. R. A. 018; Ayers v. Burns, 87 Ind. 245, 44 Am. Rep. 750; Locke V. Smith, 41 N, H. 340; Parsons v. Keyes, 43 Tex. 557 ; Jones v. Valen- tines' School, 122 Wis. 318, 320, 99 N. W. 1043. See also Guthrie r. Morris, 22 Ark. 411; Cooper V. State, 37 Ark. 421; Earle r. Reed, 10 Mete. 387; Dubose r. Wheddon, 4 McCord, 221; Haines' Adm. V. Tarrant, 2 Hill { S. C. ) , 400 ; Askey r, Williams, 74 Tex. 294, 11 S, W. 1101, 5 L. R. A. 170; Bradley V. Pratt, 23 Vt. 378, In the cases cited in this paragraph it was held Capacity of Pakties. 21 was too young to understand the bargain into which he entered ;^^ he is not liable upon an executory contract to buy necessaries.''"' It has been urged in opposition to the theory that the infant's obligation is guasi-contractual that so to hold involves the con- sequence that the infant must lost the benefit of a favorable bar- gain if the agreed price was less than the real value. ^'^ This objection is without force, however. It assumes that when it is said that an infant's obligation to pay for necessaries is quasi- contractual that the bargain which the parties actually made is void. But such is not the case. The bargain is voidable and that only by the infant. If the infant elect to stand by the contract he may do so as well where necessaries are the subject of the contract as where they are not.^" What is meant by saying the infant is liable only grwasi-contractually for necessaries is that he may avoid his contracts to pay for necessaries just as he may other contracts, but that if he does so a liability will be imposed upon him by the law which he cannot avoid. § 22. What are necessaries. — It is a question of fact in each case whether goods purchased by an infant are necessary. Illus- trations may be given of what kinds of goods have been held neces- sary or the reverse, but it should be remarked that the same thing may be necessary to one person under certain circumstances and that where an infant gives a note Atl. 53, 25 L. K. A. 618; Wallin i\ for necessaries, he is liable on the Highland Park Co., 127 Iowa, 131; note, but tlie recovery will be reduced Wells r. Hardy, 21 Tex. Civ. App. to the amount the necessaries were 454, 51 S. W. 503; Pool v. Pratt, 1 actiially worth. Other jurisdictions D. Chip. 252, 254; Jones v. Valen- hold that an infant is not liable tines' School, 122 Wis. 318, 99 N. W. on a bill, note, or bond, as such, 1043; International Textbook Co. v. whatever the consideration. Re Solty- McKone, 133 Wis. 200, 113 N. W. 4S3. kofif, [1891] 1 Q. B. 413; Morton v. '=Askey v. Williams, 74 Tex. 294, Steward, 5 111. App. 533; Henderson 11 S. W. 1101, 5 L. R. A. 176. See V. Fox, 5 Ind. 489; Ayers r. Burns, Mechem on Sales, § 122. 87 Ind. 245, 44 Am. Eep. 759; Beeler ='" Holt !'. Ward Clarencieux, 2 r. Yoimg, 1 Bibb, 519; il'Crillis v. Strange, 937; Atwell v. Jenkins, 163 How, 3 N. H. 348; Fenton v. White, Mass. 362, 40 N. E. 178, 28 L. R. A. 1 Southard, 111; Swasey v. Vander- 694, 47 Am. St. Eep. 463; Union Life heyden, 10 Johns. 33; Bouchell v. Ins. Co. ^\ Hilliard, 63 Ohio St. 478, Clary, 3 Brev. 194; McMinn v. Rich- 491, 59 N". E. 230, 81 Am. St. Rep. monds 6 Yerg. 9. 644; O'Rourke v. John Hancock Ins. "Hyman !•. Cain, 3 Jones L. 111. Co., 23 R. I. 457, 462, 50 Atl. 834, " Gregory v. Lee, 64 Conn. 407, 30 57 L. R. A. 496, 91 Am. St. Rep. 643. 22 EOBMATION OF THE CONTRACT. unnecessary to another person under other circumstances. ^'^ ITeees- saries seem to be limited by the courts as closely as possible, and so far as the purchase of goods is concerned generally come under the heads of food"** or clothing^" of a reasonable kind, purchased for the use of the infant himself or of his family. '^° In England the law seems less strict than in this country. Jewelry to present to the betrothed of a wealthy inf ant,'^^ a watch,''- a horse,*^^ a racing bicycle,*** have all been held or said, in England, to be necessaries under special circumstance. It may be doubted if American judges would generally accept these results,^ though it should be noticed that the Sales Act follows the English act in its language and certainly recognizes that things may be regarded as neces- sary for the child of wealthy parents which would not be for others. Medical services are recognized to be necessary''^ and it may be safely assumed that medicine in- proper cases would be.''' It is not likely that, because a physician recommended horseback exercise, most American courts would hold, as an English court has done,"* that a horse thereby might become necessary in the legal sense."* Lodging is necessary.™ § 23. What are not necessaries. — Under ordinary circum- stances the purchase of a house is not necessaryj^ nor work and " Epperson v. Nugent, 57 Miss. 45, " Clyde C^-cle Co. v. Hargreaves, 78 47, 34 Am. Eep. 434 ; Rivera c. Gregg, L. T. 296. 5 Rich. Eq. 274, 278. «- See the following section. "'Barnes v. Barnes, 50 Conn. 572; «° See Strong f. Foote, 42 Conn. Price V. Sanders, 60 Ind. 310, 314; 203; Price (:. Sanders, 60 Ind. 310, Rivers t. Gregg, 5 Rich. Eq. 274, 278. 314. See also Williams v. Bonner, ""Barnes v. Toye, 13 Q. B. D. 410; 79 Miss. 664, 31 So. 207. Anderson v. Smith, 33 Md. 465; =' Glover v. Ott, 1 McCord, 572. Lynch v. Johnson, 109 Mich. 640, 67 «» Hart v. Prater, 1 Jur. 623. See N. W. 908; Gay v. Ballou, 4 Wend. also Clowes v. Brooke, 2 Strange, 403, 21 Am. Dec. 158. 1101. " Cantine v. Phillips, 5 Harr. (Del.) "» See, however, Aaron i'. Harley, 6 428; Anderson v. Smith, 33 Md. 465; Rich. L. 26. Chapman v. Hughes, 61 Miss. 339. ™ Price r. Sanders, 60 Ind. 310, " Jenner u. Walker, 19 L. T. (N. S.) 314; Bivers v. Gregg, 5 Rich. Eq. 398. But see Hewlings v. Graham, 274, 278. 34 L. T. 497. "This is clear from the fact that " Barnes v. Toye, 13 Q. B. D. 410, repairs on a house belonging to an 414; Peters f. Fleming, 6 M. & W. infant, though essential to the preser- 42. vation of the property, have been ™ Hart V. Prater, 1 Jur. 623. held not necessary. Tupper v. Cad- Capacity of Paeties. 23 materials for the building of a houseJ^ Clothing of unusual elegance is clearly not essential,''^ but exceptional clothing may be treated as necessary on the marri^age of an infant.^* JSTor such food as confectionery and fruitJ^ Liquors^^ and tobacco>^^ ob- viously are not necessaries, nor a horse,™ a carriage,''" a bicycle,*" or ordinarily traveling expenses.*^ " The law does not contem- plate that a minor shall open a shop and become a trader, or the proprietor of a business vi'hich involves the making of a variety of contracts," therefore, articles essential for the conduct of a business in which the infant is engaged are not necessaries,*^ but the same judge from whom the preceding words are quoted adds, " If they had been hand. tools to a reasonable amount, such as are well, 12 Mete. 559, 46 Am. Dec. 704; Wallis V. Bardwell, 126 Mass. 366; West V. Gregg's Adm., 1 Grant, 53. And see the following note. ■= Price V. Sanders, 60 Ind. 310, 314; Price f. Jennings, 62 Ind. Ill; Wornack v. Loar, 11 Ky. L. Eep. 6, 11 S. W. 438; Horstmeyer v. Con- nors, 56 Mo. App. 115; Allen i\ Lard- ner, 78 Hun, 603; Freeman v. Bridger, 4 Jones L. 1 ; Phillips v. Lloyd, 18 R. I. 99, 25 Atl. 909. "Makarell v. Bachelor, Cro. Eliz. 683; Gayle v. Hayes' Adm., 79 Va. 542, 547. "Garr v. Haskett, 86 Ind. 373; Sams V. Stockton, 14 B. Mon. 232; Jordan v. Coffield, 70 N. C. 110, 113. "Brooker v. Scott, 11 M. & W. 67. Compare Wharton v. Mackenzie, 5 Q. B. 606. "Glover v. Ott, 1 McCord, 572. " Bryant v. Richardson, L. E. 3 Ex. 93, note. "Beeler v. Young, 1 Bibb, 519; Gayle v. Hayes' Adm., 79 Va. 542, 547; Skrine v. Gordon, 9 Ir. Rep. C. L. 479. Compare cases cited in the preceding section. " Howard v. Simpkins, 70 Ga. 322 ; Heffington v. Jackson (Tex. Civ. App.), 96 S. W. 108. '"Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; Gillis v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 265; Rice r. Butler, 160 N. Y. 578, 55 N. E. 275, 47 L. R. A. 303, 73 Am. St. Rep. 703. Otherwise in England. Clyde Cycle Co. v. Har- greaves, 78 L. T. 296. ^'McKanna v. Merry, 61 111. 177. See Breed v. Judd, 1 Gray, 455, 458. "^Ryan v. Smith, 165 Mass. 303, 43 N. E. 109. To the same effect see Whittingham v. Hillj Cro. Jac. 494; Dilk V. Keighley, 2 Esp. 480; Sanger r. Hibbard, 104 Fed. Eep. 455, 43 C. C. A. 635 ; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Rain- water V. Durham, 2 Nott & McC. 524, 10 Am. Dec. 637; Wallace v. Leroy, 57 W. Va. 263, 50 S. E. 243, 110 Am. St. Rep. 777. But otherwise under the statutes of some States. Ullmer v. Fitzgerald, 106 6a. 815, 32 S. E. 869 ; Jimmerson v. Lawrence, 112 Ga. 340, 37 S. E. 371; Re Brice, 93 Fed. Rep. 942 (Iowa). And see Hall V. Butterfield, 59 N. H. 354, 47 Am. Rep. 209. ,24' FOEMATION or THE CoNTEACT. ordinarily provided by a journeyman, and necessary for use in Ms trade or business, the case would be different." ''"* § 24. Money advanced for the purchase of necessaries. — It was ruled by EuUer, J., at Nisi Prius in 1783 that money lent, though lent for the express purpose of enabling an infant to purchase nec- essaries, and though actually expended in accordance with this pur- pose cannot be recovered,^^ " as the plaintiff thereby put it in the defendant's jwwer to misapply the money." The same rule has been stated as a dictum in a few cases in this country.^^ There are also early English cases, but these, though cited by the ximeri- can decisions, fully involve the point in one instance only, and in that single instance the decision is contrary to the rule for which the case is cited.®® If the question arose in equity it was ™ Evan V. Smith, 165 Mass. 303, 43 N. E. 109. "Probart r. Knouth, 2 Esp. 472, note. »=Beeler i'. Young, 1 Bibb, 519, 521; Swift V. Bennett, 10 Gush. 436, 438; Bradley v. Pratt, 23 Vt. 378, 386. But see Randall v. Sweet, 1 Denio, 4C0, 461. " Tlie early decisions are Eearsby and Cuffer's Case, Godb. 219; Darby i: Boucber, 1 Salk. 270; Earle v. Peale, 1 Salk. 386; Ellis v. Ellis, 3 Salk. 197. In Rearsby and Cufler'3 Case, a prohibition was granted pro- hibiting the Court of Requests from entertaining a suit for money which the plaintiff had laid out for neces- saries for the defendant, " because as it was said he might liave an ac- tion of debt at the common law, upon tlie contract for tlie same, be- cause they were things for his neces- sary livelihood and maintenance." lu Darby r. Boucher the case was thus put : " One lends an infant money, who employs it in paying for neces- saries, whether in that case the in- fant be liable; and it was lield ekarly by the Chief .Justice that the infant is not liable, for it is upon the lend- ing that the contract must arise, and after that time there could be no contract raised to bind the in- fant, because after that he might waste the money, and the infant's applying it afterward for necessaries will not by matter ex post facto entitle the plaintiff to an action." It is to be noticed that it is n.jt stated in this case that the money was lent for the purpose of buj'ing necessaries. In Earle v. Peale a rep- lication to a plea of infancy that the money was lent for necessaries was held bad. The court said : " He may buy necessaries, but he cannot borrow money to buy, for he may misajiply the money, and, therefore, the law will not trust him but at the peril of the lender who must lay it out for him, or see it laid out, and then it is his providing, and his lay- ing out so much money for neces- saries for him." In this case the question which the court was primar- ily considering was that of liability for money lent for necessaries and not used for that purpose — not that of liability for money both lent and spent for necessaries. This further appears from another report of the case in 10 Jlod. 67, where the court says : " In this ease the lending for Capacity op Parties. 25 early settled and is well established that the infant would be held liable.*^ In jurisdictions where equitable rules are applicable in all actions, recovery must also be allowed.*^ Moreover, if a surety for an infant's liability for necessaries pays the claim, he may recover what he has paid from the infant,®'* and similarly the infant has been held liable for money paid at his request to satisfy a debt for necessaries."" Finally, if the money is actually applied by the lender in the purchase of necessaries for the infant it is well settled that the infant is liable."^ If, therefore, the creditor cannot recover at law for money lent and expended for necessaries, the reason must be purely technical. JSTo sound tech- nical reason exists. If the infant's liability for necessaries is guasi-contractual the principles governing the case ought to be based on the enrichment of the infant and his duty as a matter of justice to reimburse the person to whom this enrichment is owing. Judged by these principles there is no valid distinction such a purpose is only put in issue, whicli miglit be maintained without showing how the money was actually laid out; that if the fact was so, the plaintiff should have declared for money so laid out, and not so lent.'' The only case where the question of money both lent and spent for neces- saries was clearly passed upon is the last of those cited above, Ellis v. Ellis. , In this case (also reported in 12 ilod. 197, Comb. 482, 1 Ld. Eaym. 344) it was held that " an infant is chargeable for money lent, if it is laid out for necessaries, according to his degree, but all that is at the peril of the lender.'' This decision was decided before Earle v. Peale, though the report of it in Salkeld's and Modern Reports is subsequent, but there is nothing in Earle v. Peale which can be regarded as over- ruling Ellis V. Ellis. There are no recent English decisions on the point in courts of law. In Bateman v. King- ston, 6 L. R. Ir. 328, the lender was not allowed to recover on an interest- bearing note though the money had been expended by the infant for neces- saries, but the difficulty the court found was to allow recovery on an interest-bearing note, irrespective of what the consideration for it was. See Re Soltykoff, [1891] 1 Q. B. 413. "Marlow v. Pitfield, 1 P. Wms. 558 ; Thurstan r. Nottingham Soc., [1903] A. C. 6; Price v. Sanders, 60 Ind. 310; Hiclonan v. Hall's Adm., 5 Litt. 338, 342; Watson r. Cross, 2 Duvall, 147, 149; Bradley v. Pratt, 23 Vt. 378, 386. See also Ostrander V. Quin, 84 Miss. 230, 36 So. 257, 105 Am. St. Kep. 426. '^ Price V. Sanders, 60 Ind. 310. '"Conn V. Coburn, 7 N. H. 368, 26 Am. Dec. 746; Haines' Adm. v. Tarrant, 2 Hill (S. C), 400. See also Ayers v. Burns, 87 Ind. 245, 248, 249, 44 Am. Eep. 759; Dial f. Wood, 9 Baxt. 296. »» Randall r. Sweet, 1 Denio, 460. '"■ See eases supra, and Clarke v. Leslie, 5 Esp. 28; Re Clabbon, [1904] 2 Ch. 465. 26 rOEMATION" OF THE CoNTBACT. to be made between a case where the creditor bought the neces- saries for the infant and a case where he allowed the infant to do so with money lent for the purpose. The same result follows if the infant's liability for necessaries be regarded as contractual. Contracts for necessaries on this assumption differ from other contracts only in this that they cannot be avoided, and the reason for not allowing them to be avoided is because it is essential for the infant's welfare that he have power to bind himself, since otherwise, if without money, he might be deprived of the neces- saries of life. This reason applies to the case of money lent and used for necessaries as fully as to anything else. Frequently an infant can get no credit for necessaries, but can borrow money from a friend wherewith to buy them. It is a harsh rule which compels the lender, who resides perhaps at a distance, to super- vise the expenditure on penalty of forfeiting his claim, even though the infant keeps his word and buys only necessaries. The reason- ing suggested in some of the old cases that the contract must be either valid or invalid when made and that as the infant might misapply the money the contract could not be good goes on the assumption, which cannot now be maintained, that the contracts of an infant if not for necessaries are void, for there is no reason why a contract voidable when made — that is before the money is spent for necessaries — should not cease to be voidable later, when the money is so expended, or that a ^uasi-contractual liability should not then arise. ^^ In a recent Tenessee case®^ it was held that a claim for payment for a telegram sent by an infant in desti- tute circumstances to his parents for money was a claim for necessaries. This can hardly be supported unless it is admitted that money sent to relieve his destitution would be a necessary. § 25. Previous supply.— What are necessaries is determined not simply by the nature of thing, but by the need of that thing '' The further reason suggested by statement of the rule in other terms, Redfield, J., in Bradley v. Pratt, 23 for why should such privity be neces- Vt. 378, 386, and adopted in the note sary. There is no rule and no to Craig v. Van Bebber, 18 Am. St. analogy in the law that makes it Eep. 658, that the difficulty is want requisite for the enforcement of a of privity between the lender and the right against the infant, one who supplies the necessaries, is " Western Union Tel. Co. r. Greer in reality no reason but merely a 115 Tenn. 368, 89 S. W. 327. Capacity of Paeties. 27 at that time by the particular infant in question. Accordingly if an infant is already supplied either by his guardian or by previous purchases with sufficient food, clothing, or other neces- saries, no further purchase on credit of articles of the same kind can bind him.°* Similarly if an infant when in need purchases more of the required goods than are essential, recovery can be had by the seller for only so much as were actually needed.®^ " It is immaterial whether the plaintiffs did or did not know of the existing supply, just as it is immaterial whether they did or did not know that the defendant was a minor." ^^ It has been decided in England*^ that an infant in receipt of an income suffi- cient to pay for all necessaries may, nevertheless, bind himself by a purchase on credit, but the contrary has been held in this country.®^ It would seem on principle that though if the infant had previously wasted the money he could buy on credit, otherwise he ought not to be bound, for his power to bind himself should be limited to cases where his protection requires it.®® If it appears that an infant has been sufficiently supplied with money to provide himself with necessaries the burden should be upon the creditor of producing evidence that the money had been previously mis- applied.-' So if the infant is living with his parents or guardian, the burden is upon the creditor to prove that the infant was not supplied by them.^ It has been settled that an infant is not bound by his executory promise to buy necessaries,^ but it has not been =» Burghart v. Angerstein, 6 C. & P. " Burghart v. Hall, 4 M. & W. 690; Foster v. Redgrave, L. R. 4 Ex. 727. 3.5, note; Barnes v. Toye, 13 Q. B. D. ™ Brent v. Williams, 79 Miss. 355, 410; Johnstone v. Marks, 19 Q. B. D. 30 So. 713; Rivers v. Gregg, 5 Rich. 509; Conboy v. Howe, 59 Conn. 112, Eq. 274. 22 Atl. 35; McKanna v. Merry, 61 "'Rivers v. Gregg, 5 Rich. Eq. 274. 111. 177, 180; Trainer v. Trumbull, 'Rivera v. Gregg, 5 Rich. Eq. 274. 141 Mass. 527, 6 N. E. 761 ; Decell See also Nicholson v. Wilborn, 13 Ga. V. Lewenthal, 57 Miss. 331, 34 Am. 467. Rep. 449; Perrin v. Wilson, 10 Mo. = Bainbridge v. Pickering, 2 W. Bl. 451; Nichol V. Steger, 6 Lea, 393. 1325; Hoyt v. Casey, 114 Mass. 397, ■« Nicholson v. Wilborn, 13 Ga. 19 Am. Rep. 371; Perrin v. Wilson, 467; Johnson v. Lines, 6 Watts & S. 10 Mo. 451; Freeman v. Bridger, 4 80, 40 Am. Dee. 542. Jones L. 1, 67 Am. Dec. 258; Con- »" Barnes v. Toye, 13 Q. B. D. 410, noUy v. Hull, 3 McCord, 6, 15 Am. 414; Kline v. L'Amoureux, 2 Paige, Dec. 612. 419, 22 Am. Dec. 652; Nichol v. 'See supra, § 19. Steger, 6 Lea, 393. 28 POEMATION OF THE CojSTTEACT. decided "wlietlier in case of a sale where title has passed to the infant but the goods have not been delivered, the infant may repudiate the bargain. It seems reasonable that he should, if for instance he iinds that he no longer needs the goods. Though the elements of contractual liability exist, the unjust enrichment which forms the basis of r/wasi-contractual liability does not. If this be so the time that the infant becomes bound, if at all, is when the goods are so delivered. For this reason in the Sales Act the moment of delivery is the time considered in determining whether an infant has a previous supjoly. § 2G. False representations of age. — It is everywhere agreed that the fact that the infant was trading as an adult or otherwise appeared to be of age, and that the other party contracted with him on the belief that he was an adult, does not affect the validity of the transaction or the infant's privilege either at law* or in equity.'' If the infant is guilty of actual misrepresentation, the authorities are not so unifoi-m but the view generally accepted is, that so far as the validity of contracts and conveyances is con- cerned the rights at law of the parties are not affected by the misrepresentation.'' In equitable proceedings, however, the infant is generally held to be estopped to avoid such a transaction if he * Miller v. Blankley, 3S L. T. Foster, 12 C. B. (N. S.) 272; Sims r. (X. S.) 527; ilacGrealf. Taylor, 1U7 Evcrhardt, 102 U. S. 300, 312, 2i; L. U. S. 6S8, 0'J5, 42 L. ed. 32(i; Oliver ed. S7 ; Tobin v. Spann, 85 Ark. 5.1G, V. !Mc(.'lellan, 21 Ala. 075; Buchanan 109 S. ^^'. 534; ^Merriam r. Cunning- V. Hubbard, 90 Ind. 1; Folds v. Al- ham, 11 Cush. 40; Conrad r. Lane, 2u lardt, 35 ilinn. 4S8, 499, 29 X. W. Minn. 3S9, 4 X. W. 605, 37 Am. Rep. 201; Houston r. Cooi.er, 3 X. J. L. 412; Alt i\ Graff, 65 :Minn. 191, 08 800; Van Winkle r. Kctcliam, 3 X'. W. 9; United States Corp. r. Ul- Caines, 32;'.; Curtin i:. Patton, 11 S. rickson, 84 Minn. 14, 20, SO X. ^'^^ & R. 305, 309; Caipenter r. Pridgen, 613, 87 Am. St. Pep. 320; Burley i\ 40 Tex. 32, 35. Russell, 10 X. H. 184, 34 Am. Dec. ° Stikeman 'K. Dawson, 1 De 0. & S. 146; Conroe v. Birdsall, 1 Johns. Cas. 90; Alvey v. Reed, 115 Ind. 148 127, 1 Am. Dec. 105; Brown r. Mc- (Code), 17 X. E. 265, 7 Am. St. Rep. Cune, 5 Sandf. 224. But se" contra, 418; Baker v. Stone, 136 IMass. 405; Damron v. Commonwealth, 110 Ky. Brantley r. Wolf, 60 Jliss. 420; Riv- 268, 96 Am. St. Rep. 453; Com- ers 1-. Gregg, 5 Rich. Eq. 274, 279. mander v. Bra7.il, 88 jMiss. UflS, 4) "Price r. Hewctt, 8 Ex. 140; Bart- So. 497. S<'<; also Harper v. Utsej lett V. Wells, 1 B. & S. 836; DeRoo p. (Tex. Civ. App.), 97 S. W. 508. Capacity oe Pakties. 29 cannot restore the consLderationJ Such misrepresentation has, moreover, other effects. Though, the infant may not lose his privi- leges under the bargain, at law or perhaps even in equity, the adiilt acquires also the right to disaffirm the contract. A trans- action induced by fraud is voidable by the defrauded person, and it is immaterial for this purpose whether the fraudulent person is an infant or an adult.^ Whether the infant is liable in tort for deceit in misrepresenting his age is not so clear. There is con- siderable authority that he is not.^ The sounder view, however, is that the infant is liable.^" It is conceded in all the cases- that an infant is as a rule liable for his torts and there is no valid reason why he should not be liable for false and fraudulent ''Ex parie Unity Aasooiation, 3 De O. &, J. 03 (citing earlier authorities "by whicli the court felt bound but of •which it expressed its dislike) ; Corn- -wall r. Hawkins, 41 L. J. Ch. 435 (compare Bartlett v. Wells, 1 B. & S., 830; De Eoo r. Foster, 12 C. B. (N. S.) 272) ; Ferguson v. Bobo, 54 Miss. 121. See also Davidson v. Young, 38 III. 145. See further, § 18. Contra, however, is Sims v. Ever- liardt, 102 U. S. 300, 26 L. ed. 87. The force of this decision is somewhat weakened by the fact that the court was evidently ignorant of the distinc- tion made by the English decisions between legal and equitable proceed- ings so far as this question of estop- pel is concerned. Sims -v. Everhardt is cited as controlling in Sanger v. Hibbard, 104 Fed. Rep. 455, 43 C. C. A. 635. See also Geer v. Hovy, 1 Hoot, 179; Schmitheimer v. Eiseman, 7 Bush, 298. * Lempriere v. Lange, 12 Ch. D. 675 ; Badger v. Phinney, 15 Mass. S59. So where the infant obtains goods with fraudulent intent not to pay for them. Wallace v. Morss, 5 Hiil, 391; Kilgore v. Jordan, 17 Tex. 341, 351. ° " The earlier authorities are clear to this point that no such action can be maintained. Johnson v. Pie, 1 Lev. 169, and 1 Keb. 905; Grove f. Nevill, 1 Keb. 778; Green v. Green- bank, 2 Marsh. 485." Merriam v. Cunningham, 11 Cush. 40. To the same effect are Liverpool Assoc, v. Fairhurst, 9 Ex. 422; Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Eep. 510; Brooks v. Sawyer, 191 Mass-. 151; Brown v. McCune, 5 Sandf. 224, 229; Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R. A. 501, 15 Am. St. Eep. 931. See also Price v. Hewett, 8 Ex. 146; Bartlett v. Wells, 1 B. & S. 836; Brown r. Dunham, 1 Root, 272; Geer v. Hovy, 1 Root, 179; Conrad r. Lane, 20 Minn. 389, 4 N. W. 695, 37 Am. Eep. 412; United- States Corp. V. Ulrickson, 84 Minn. 14, 20, 86 K. W. 613, 87 Am. St. Rep. 326; Ferguson v. Bobo, '54. Miss. 121, 131; Keen r. Hartman, 48 Pa. St. 497, 88 Am. Dec. 472. "Davidson v. Young, 38 111. 145; Rice V. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53; Yeager v. Knight, 60 Jliss. 730; Fitts r. Hall, 9 N. H. 441 (the leading case) ; Eckstein v. Frank, 1 Daly, 334; Kil- gore I'. Jordan, 17 Tex. 341 ; Car- penter V. Pridgen, 40 Tex. 32. 30 FOEMATION OF THE CONTRACT. representations as fully as for other torts, nor if he is in general liable for his deceits is there any reason to distinguish the case where the injurious consequence of the deceit is entering into an unenforcible contract from cases where the injurious con- sequences are of a different nature. The reasoning generally given in cases which protect the infant, " that infants are liable for their torts, yet the form of action does not detennine their liability, and they cannot be made liable when the cause of action arises from a contract, although the form is ex delicto," ^^ does not meet the difficulty. The infant is not held liable on his contract either in form or substance if he is held liable for deceit. § 27. Other false representations. — Even more difficult ques- tions have arisen in regard to other false statements of infants — especially warranties of quality or title. The action upon a war- ranty is older than the action of assumpsit, deceit being regarded as the gist of the action. In modern times a warranty has been regarded as contractual in its nature, but the right to bring an action sounding in tort upon it having been early established has persisted. Undoubtedly many, perhaps most, warranties are rep- resentations of fact as well as promises, but in other cases the warrantor's liability is wholly based on a promise, and so far as there is any representation to be implied from the warranty, it is one of opinion. Even where a warranty contains a false repre- sentation of fact, the seller may be iinaware that his reiJresentation is false, and in such a case an essential element of the ordinary right of action for deceit is lacking. If an action of tort is allowed under such circumstances against an adult, the gist of the action is nevertheless contractual or guasi-eontractual, and if the ac- tion is against an infant, his privilege should protect him from liability. If, however, an infant makes representations of fact, known to him to be false, and these representations are relied on, the fact that the infant has also warranted the truth of his state- ments should not protect him. This reasoning agrees with that in a South Carolina decision,^- and finds some support from other cases, not directly in point, for instance, the decisions cited in the preceding section holding an infant liable for misrepresentino' his "Nash V. Jewett, 61 Vt. 501, 503, "Word v. Vance, 1 Nott & MqC. 18 Atl. 47, 4 L. R. A. 561, 61 Am. in?, 9 Am. Dec. 683. The court in St. Rep. 931. view of the finding of the jury that Capacity of Parties. 31 age, and other decisions in which it was held that an infant who obtains property with intent not to pay for it is liable in tort.^* The broad statement sometimes made^* that an infant is not liable for a tort which grows out of contractual relations is also discredited by another class of cases which hold that if property is bailed to an infant for one purpose and in violation of his con- tract he uses it for another he is guilty of conversion.-'^ Never- theless, there are decisions holding without qualification that an infant warrantor is not liable in any form of action or under any circumstances.-'® The distinction is not observed in these cases between holding the infant to make good the warranty and hold- ing him liable for the damage caused by inducing the plaintiff to enter into the transaction. The former ought not to be allowed even though the action is in tort ; the latter ought to be. § 28. Insane persons; early law. — The rule laid down by Lord Coke as to a lunatic was that he could not be permitted to show the invalidity of his acts because to do so woiald be to stultify himself.^^ This reasoning would probably prevail nowhere at the present time, and may, therefore, be disregarded. There are, the infant kne-vv of the falsity of hia ^° Burnard v. Haggis, 14 C. B. representations held the plea of in- {N. S.) 45; Walley c. Holt, 35 L. T. fancy inefifectual, saying: "This is 631; Homer v. Thwing, 3 Pick. 492; an action, as well in form as in sub- Eaton v. Hill, 50 N. H. 235, 9 Am. stance, ex delicto, and -when such is Eep. 180; Stack v. Cavanaugh, 67 the cause of action, even -where the N. H. 149, 30 Atl. 350; Campbell v. form is ex contractu, the defense of Stakes, 2 Wend. 137, 19 Am. Dec. infancy -will not avail. Bristow v. 561; Fish v. Ferris, 5 Duer, 49; Eastman, 1 Esp. 172." In Bristo-w v. Moore v. Eastman, 1 Hun, 578; Free- Eastman, the action of money had man c. Boland, 14 R. I. 39, 51 Am. and received -was allowed against an Eep. 340; Green v. Sperry, 16 Vt. infant to recover money embezzled by 390, 42 Am. Dec. 519; Towne v. him. To the same effect are Shaw v. Wiley, 23 Vt. 355, 56 Am. Dec. 85; Coffin, 58 Me. 254, 4 Am. Eep. 290; Ray v. Tubbs, 50 Vt. 688, 28 Am. Elwell !!. Martin, 32 Vt. 217. Rep. 519. Contra, Jennings v. Run- " Mathews v. Cowan, 59 111. 341; dall, 8 T. R. 335; Schenk v. Strong, Ashlock V. Vivell, 29 111. App. 388; 1 Southard (N. J.), 87; Penrose v. Wallace v. Morss, 5 Hill, 391. See Curren, 3 Rawle, 351, 24 Am. Dec. also Badger -y. Phinney, 15 Mass. 359, 356; Wilt v. Welsh, 6 Watts, 9. 8 Am. Dec. 105; Walker v. Davis, "Grove v. Nevill, 1 Keb. 778; 1 Gray, 506; Gaunt v. Taylor, 15 N. Green v. Greenbank, 2 Marsh. 485; Y. Suppl. 589; Harseim v. Cohen Prescott v. Norris, 32 N. H. 101; (Tex. Civ. App.), 25 S. W. 977. Doran 'v. Smith, 49 Vt. 353. "See e. g., Cooley on Torts, *106; "Beverley's Case, 4 Co. Eep. 123b. 2 Kent's Com. *241. 32 FOEMATIOW OF THE CONTEACT. however, still several theories in regard to the nature of a luna- tic's contract or deed. Most of the cases relate to deeds, but there seems to be no distinction in principle betv^een the case of a deed or conveyance of real estate and a contract or sale of personal property. Decisions, therefore, in regard to deeds, may be taken as establishing a rule of decision for other cases in the absence of authority to the contrary. These several theories may now be considered. § 29. Limaties' transactions void. — It seems a natural con- sequence of lunacy that a transaction which requires mutual assent cannot be effectually made by a lunatic ; as was said in a de- cision of the Supreme Court of the United States: " The funda- mental idea of a contract is that it requires the assent of two minds ; but a lunatic or a person ?ion compos mentis has nothing which the law recognizes as a mind." ^^ Accordingly it was held in early English cases that a lunatic could not execute a deed,^^ nor a bond,^ nor indorse a bill of exchange. ^^ And so it was held that a family settlement made by a lunatic ought to be set aside, although it was reasonable and for the convenience of the family."' In accordance with this view it is held in many cases, especially those of not very recent times, that a lunatic's contract^^ or deed^* "Dexter v. Hall, 15 Wall. 9, 21 07 Fed. Eep. 39f) ; Thompson v. New L. ed. 73. England Co., 110 Ala. 400, 18 So. "Yates !'. Boen, 2 Strange, 1104. 315, 5.3 Am. St. Eep. 29; Dougherty =°Faulder r. Silk, 3 Campb. 12G. v. Powe, 127 Ala. 577, 30 So. 524; "' Alcock V. Alcock, 3 M. & Gr. 268. Wilkins r. Wilkinson, 129 Ala. 279, '- Clerk r. Clerk, 2 Vern. 323. 30 So. 578 ; Van Deusen j . Sweet, 51 ^ Edwards r. Davenport, 4 McCrary, N. Y. 378 ; Sander i . Savage, 75 N. Y, 34; Henry r. Fine, 23 Ark. 417; App. Div. 333 (but see Blinn v. Caulkins r. Fry, 35 Conn. 170; Scliwarz, 177 N. Y. 2:;2, 69 X. E. Eeinskopf r. Rogge, 37 Ind. 207; At- 542); Farley v. Parker, 6 Or. 105, well V. Jenkins, 163 Mass. 362, 40 25 Am. Eep. 504; Estate of Desilver, N. E. 178, 28 L. R. A. 694, 47 Am. 5 Rawie, 111; Rogers r. Walker, 6 St. Eep. 463; Burke v. Allen, 29 Pa. St. 371, 47 Am. Dec. 470. And N. H. 106, 61 Am. Dec. 642; Berkley see Dexter v. Hall, 1.3 Wall. 9, 21 L. V. Cannon, 4 Eioh. L. 136; Hunter v. ed. 73; Jacks r. Estee, 139 Cal. 507, Tolbard, 47 W. Va. 258, 34 S. E. 73 Pac. 247; Edwards v. Davenport, 737; Bursinger v. Bank of Water- 4 IMcCrary. 34; Waller r. Julius, 68 to\vn, 67 Wis. 75, 30 N. W. 290, 58 Kan. 314, 74 Pac. 1.37: Valpey v. Am. Rep. 848. See also Chicago, etc., Eea, 130 Mass. 384; Brigham v. Fay- Ry. p. Lewis, 109 111. 120. erweather, 144 Mass. 48, 10 N. E. ^* German Savings Soc. v. Lashmutt, 735. Capacity of Paeties. 33 is absolutely void. It should be noticed, however, that the word "void" is used with very different meanings -by judges and law writers ;'■' and it may be doubted whether most of the courts which have said that the acts of a lunatic are void would 'follow that doctrine to its logical conclusion. Thus : If the contracts of a kmatic are void they cannot be 'ratiified; third persons may effectually deny the title of an insane person's grantee; and a sane party to a bargain with a hmatic may repudiate it although the lunatic has performed on his side, or ds ready 'to perform. That all these consequences would be admitted 'by courts which speak of the contracts of a lunatic as void is at least not' clear. § 30. innatics' transactions voidable. — According to the view more commonly expressed, a lunatic's transactions are voidable. An analogy with infant's contracts, confessedly inot perfect, in- asmuch as an infant may be, in fact, mentally competent, whereas a lunatic generally, at least, is incompetent in fact to understand the force of his bargain, has been followed both as to contracts^* and deeds.^^ ^^ See BTinn v. Sohwarz, 177 N. Y. 252, 259, 69 N. E. 542 ; 'State v. Eicli- mond, 26 N. H. 232, 239; Markby, lElements on , Law (3d ed.), §§ 274, 651. "= Wright V. Waller, 127 Ala. 557, 29 So. 57, .54 L. R. A. 440; Coburn V. Raymond, 76 Conn. 484, 100 Am. St. Rep. 1000; Orr i'., Equitable Mort- ,gage Co., 107 Ga. 499, 33 S. E. 708; Wooley V. Gaines, 114 Ga. 122, 39 S. E. 892, 88 Am. St. Rep. 22; Joest V. 'Williams, 42 Ind. 565, 13 Am. St. Rep. 377; Mussclmajx v. Cravejis, 47 Jnd. .1; Louisville, etc., Ry. Co. v. Eerr, 135 Ind. 591, 35 N. E. 556; Mansfield v. Watson, .2 Iowa, 111; AUen r. Berryhill, 27 Iowa, 534, 1 Am. Rep. 309; Van Patten v. Reals, 46 Iowa, 62; Seaver v. Phelps, 11 Pick. 304, 22 Am. Dee. 372; Car- ipenter v. -Rodgers, 61 Mich. 384, 28 N. W. 156, 1 Am. St. Rep. 595; Ee Vries v. Crofoot, 148 Mich. 183, 111 N. W. 775; .Broadwater v. Darne, 10 3 Mo. 277; Jngraham v. Baldwin, 9 N. Y. .45; BiUsh r. Breinig, 113 Pa. St. 310, 6 Atl.-86, 57 Am.. Rep. 469. -"Luhrs V. Hancock, 181 U. S. 567, 574, 21 S. Ct. 726, 44 L. ed. 10O5 ; Wooley !>. Gaines, 114 Ga. 122, 39 S. E. 892, 88 Am. St. Rep. 22; Scan- Ian V. Cobb, 85 111. , 296 ; Nichol v. Thomas, 53 Ind. .42; Freed v. BrowTi, .55 i Ind. ,310; Sch.uff i'. Eamsom, 79 Ind. 458; Boj'er v. Berriman, 123 Ind. 451, 24 N. E. 249; Harrison v. Otley, 101 Iowa, 652,. 70. N. W. 724; Gri'bben v. Maxwell, 34 Kans. 8, 7 Pac. 584 ; Smith's Committee ' v. For- sythe, 2S Ky. L. Rep. 1034, 90 S. W. 1075; Hovey v. Hobson, 53 Me. ,451, 89 Am. Dec. 705; Allis v. Billings, 6 Mete. 415, 39 Am. Dec. 744; Riley v. Carter, 76 Md. 581, 25 Atl. 667, 19 L. E. A. 489; Arnold D. Richmond Iron Works, 1 Gray, 434; Gibson v. Soper, Gray, .279, 66 Am. Dec. 414; Howe ■!-. Howe, 99 Mass. 88, 98; Rogers, l). Blackwell, 49 Mich. ,192, 13 34 F0BMATI02>^ OF THE CoNTEACT. § 31. Voidable against bona fide purchaser. — Though a lunatic's contracts are regarded as voidable only, they naay at common law, if voidable at all, be avoided against a purchaser who paid value for the property which was the subject of the lunatic's bargain and which the purchaser bought in ignorance of the original owner's insanity from the person to whom the lunatic sold it.^ This rule has, however, been changed by the Sales Act^^ which makes no exception to the rule that a bona fide purchaser for value from one who has a voidable title acquires a good title. § 32. Ratification and disaffirmance. — It is a consequence of the voidable character of a lunatic's contracts that they may be rati- fied and the authorities almost uniformly support the validity of such ratification.^'' Anj conduct on the part of the lunatic who has regained his reason which clearly indicates assent to his previous acts, will ratify those acts.^^ Such conduct will amount to ratification in spite of ignorance of the right to avoid the trans- N. W. 512 (sertible) ; Moran v. iloran, 106 Mich. 8, 03 N. w. 989, 58 Am. St. Rep. 462; Thorpe v. Hanscom, 64 Minn. 201, 60 N. W. 1; Miller v. Barber, 73 N. J. L. 38, 62 Atl. 276; Blinn v. Schwarz, 177 N. Y. 252, 69 N. E. 542, 101 Am. St. Eep. 806; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77 ; Elston v. Jasper, 45 Tex. 409. See also Hardy c. Dyas, 203 III. 211, 67 X. E. 852; Sheehan c. Allen, 67 Kans. 712, 74 Pac. 245. ^»Hull V. Louth, 109 Ind. 315, 10 X. E. 270, 5S Am. Rep. 405; Hovey !■. Hohson, 53 ile. 451, 89 Am. Dec. 705; Rogers i\ Blackwell, 49 Mich. 192, 13 N. W. 512 ; McKenzie v. Don- nell, 151 Mo. 431, 52 S. W. 214; Dewey v. Allgire, 37 Neb. 6, 55 N. W. 276, 40 Am. St. Rep. 468; Gingrich «. Rogers, 69 Xeb. 527, 96 X. W. 156. But see Ashcraft i,-. De Armond, 44 Iowa, 229; Odom v. Riddick, 104 N. C. 515, 10 S. E. 609, 7 L. R. A. 118, 17 Am. St. Rep. 686, where it was held that a hona fide purchaser of land who had paid full value for it could not be deprived thereof un- less the consideration paid was re- stored. It should be observed that wherever it is held that a lunatic can- not avoid a contract made by him with one who is ignorant of his lunacy and who pays him full value as consideration, unless the original status is restored, it necessarily fo!' lows that property if recoverable from a hona fide purchaser can be recov- ered only upon the same conditions. "» Sec. 24. See infra. § 348. ™ilatthews v. Baxter, L. R. 8 Ex. 132; Bald^A-yn r. Smith, [190O] 1 Ch. 588; -I'ltna L. I. Co. v. Sellers, 154 Ind. 370, 56 X. E. 97, 77 Am. St. Rep. 481 ; Arnold )'. Richmond Works, 1 Gray, 434; Wolcott v. Conn. L. I. Co., 137 Mich. 309; Gingrich l'. Rogers, 69 Xeb. 527, 96 N. W. 156; Blinn i\ Schwarz, 177 X^. Y. 252, 69 X. E. 542, 101 Am. St. Rep. 806. And see cases in the following notes. But see Oakley v. Shelley, 129 Ala. 407, 470, 29 So. 385. '"Barry r. St. Joseph's Hospital (Cal.), 48 Pac. Eep. 68; Strod- der r. Southern Granite Co., 99 Ga. 595, 27 S. E. 174 ; Beasley r. Beasley, 180 111. 163, 54 N. E. 187; Louisville, Capacity of Parties. 35 action and of the effect of the subsequent conduct as a relin- quishment of that right.^^ Whether a mere failure to disaffirm a bargain made during insanity will suffice for ratification has not been as much discussed as the corresponding question in re- gard to infants. It seems, however, that if the limatic on re- covering his reason was aware of the bargain which he had made while insane, delay without more would preclude him from dis- aiErming the transaction.^^ The lunatic's representatives may ratify after his death a contract made by him.^* Similarly they may disaffirm the bargain.^'' In England ratification by a guard- ian has been upheld.^^ And in this country the converse propo- sition, that the guardian of a lunatic may disaffirm his con- tracts, is upheld.^^ It has been held in IN'ebraska, however, that the acts of a lunatic cannot be ratified by his guardian or even by the court having jurisdiction over the lunatic.^^ The party with whom the lunatic dealt cannot avoid the contract be- cause of the kmacy.^® And so far as third persons are concerned etc., Ry. Co. v. Herr, 135 Ind. 591, 35 N. E. 556; Whitcomb v. Hardy, 73 Minn. 285, 76 N. W. 29 ; AUis v. Bill- ings, 6 Mete. 415, 39 Am. Dec. 744; Arnold v. Richmond Works, 1 Gray, 434; Gibson v. Western, etc., E,. B. Co., 164 Pa. St. 142, 30 Atl. 308, 44 Am. St. Kep. 586. =^ Arnold • v. Richmond Works, 1 Gray, 434. But see Alabama, etc., Ry. V. Jones, 73 Miss. 110, 19 So. 105, 55 Am. St. Rep. 488. ^ Cockrill r. Cockrill, 92 Fed. Rep. 811, 34 C. C. A. 254; Barry v. St. Joseph's Hospital (Cal.), 48 Pac. 68; Strodder v. Southern Granite Co., 99 Ga. 595, 27 S. E. 174; Bunn v. Postell, 107 Ga. 490, 33 S. E. 707; Spicer v. Holbrook, 29 Ky. L. Rep. 865, 96 S. W. 571; Morris v. Gt. Northern Ry. Co., 67 Minn. 74, 69 N. W. 628. See also Wright v. Fisher, 65 Mich. 275, 284, 32 N. W. 605, 8 Am. St. Rep. 886. ^Bunn V. Postell, 107 Ga. 490, 33 S. E. 707; Bullard v. Moor, 158 Mass. 418, 33 N. E. 928. == Langley v. Langley, 45 Ark, 392. 397 ; Orr v. Equitable Mortgage Co., 107 Ga. 499, 33 S. E. 708; Downham ' V. Holloway, 158 Ind. €26, 64 N. E. 82, 92 Am. St. Rep. 330. "BaldAvyn v. Smith, [1900] 1 Ch. 588. "Eldredge v. Palmer, 185 111. 018, 57 X. E. 770, 76 Am. St. Rep. 59; Hull V. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. St. Rep. 405; Louisville, etc., Ry. Co. v. Herr, 135 Ind. 591, 35 N. E. 556; Alexander v. Haskins, 68 Iowa, 73, 25 N. W. 935; Reason v. Jones, 119 Mich. 672, 78 N. W. 899. "'Gingrich v. Rogers, 69 Neb. 527, 96 N. W. 156. See also Rannells i;. Gerner, 80 Mo. 474. '" Harmon v. Harmon, 51 Fed. Rep. 113; Allen v. Berryhill, 27 Iowa, 534; Breckenridge i: Ormsby, 1 J. J. Marsh. 236, 239, 19 Am. Dec. 71; Atwell r. Jenkins, 163 Mass. 362, 40 N. E. 178, 28 L. R. A. 694, 47 Am. St. Rep. 463. Compare Ashley v. Hol- man, 15 S. C. 97, where the court seemed to regard any liability of the other party to be gMO-si-contractual. 36 FoEilATION OF THE COXTBACT. the contract before it has been avoided is valid.*'' Therefore, a creditor of an insane person cunnot attack a transfer of property made by his debtor for the sole reason that the grantor was a luna- tic at the time of the transfer.*^ If ii contract has been ratified it is obvioiTS that it cannot thereafter be avoided."^ It has been held that a lunatic's contracts cannot be effectively avoided by him • while insane/^ but the decisions on this question in regard to .infants should be compared/* § 33. Lunatic's contracts valid in some cases. — In comparatively recent times courts have made a still farther departure from the view that a lunatic's contract is void because of his inability to . give intelligent assent. In the leading case of ilolton v. Cam- roux/^ the rule was stated " The modern casts show that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defense cannot prevail, especially where the contract is not merely executory but executed in the whole or in part and the parties cannot be restored altogether to their original positions." *'' Tne rule thus stated had, at the time, the support of decisions in equity,*^ bnt went beyond what had been previously decided by courts of law. The rule is, however, in line with the ^•iew now generally prevailing in regard to mutual assent as a requirement for the formation of contracts. According to the modern view actual mental assent is not material in the formation of contracts, the important thing being what each party is warranted in believing from' the actions and words of the man he is dealing with. Accordingly if one "Atwell V. Jenkins, 163 ^Mass. 3fi2, general assignment made by their 40 N. E. 178, 28 L. R. A. 694, 47 Am. debtor for the benefit of his creditors St. Eep. 4f;3. See, however, Waller on the ground that he was insane. 17. Julius, 08 Ivans. 314, 74 Pac. 157, '"- Bunn v. Postell, 107 Ga. 490, 33 where it was held that one in posses- S. K. 707. eion of land might set up the in- "Louisville, etc., Ey. Co. v. Herr, ■validity of a deed made by an insane 135 Ind. 591, 35 N. E. 556. , owner, in view of the iacts that no " See supra, § 16. consideration was paid by the grantee ■^ 2 Ex. 487; 4 Ex. 17. This was and he knew of the insanity. an action brought after a lunatic's <^ Brumbaugh r. Eichcreek, 127 Ind. death to recover back premiums paid 240, 20 N. B. 604, 22 Am. St. Eep. by him for an annuity. Eecovery . 649. Compare Eiley r. Carter, 76 was not allowed. Md. 581, 2o Atl. 607, 19 L. E. A. 489, '• 4 Ex. 17, 19. 35 Am. St. Eep. 443, where.it was *' Mell v. Morley, 9 Ves. 478. held that creditors might attack a Capacity of Parties. 3T dealing with a lunatic may reasonably suppose he is sane and makes a bargain with him on that assumption, there is no theo- retical difficulty in the lack of mutual assent. It is, however, for reasons of justice, necessary that the lunatic should be privi- leged to avoid the contract if it is oppressive. As this is a per- sonal privilege it may well be- limited to cases where there would i be hardship otherwise. It is so limited by the rule of ilolton v. Oamroux, for if a lunatic has received fair consideration, of which he has had the benefit, and which he cannot restore, there is no hardship in treating the transaction as valid. Accordingly^ the rule has not only been followed in England,*^ but has been much extended. In Melton v. Camroux the court confined its- remarks strictly to the case of executed contracts, but in the case- of Imperial Loan Co. v. Stone*" all the judges state without limita- tion that unless the mental incapacity was known, to the other; party insanity is no defense to an action on a contract ; and Lord Esher says expressly " whether it is executory or, executed." But one of the three judges suggests that it is essential that the^ contract shall be fair, and none of the three suggest that if the- consideration was restored the lunatic might rescind the contract. Indeed in the actual case the lunatic was a surety, who may be pre- sumed to have received no benefit from the consideration. Whetheri all the implications of this decision can be taken as settled law in England may be questioned in view of. late judicial expressions- in other cases.^" In this country, the weight of authority certainly; supports the rule quoted above from Molton v. Camroux.'^ This^ ''Matthews -v. Baxter, L. R. 8 Ex. now v. Roach, 210 111. 304, 71 X. E.' 132; Imperial Loan Co. v. Stone, 454; Fay v. Biirditt, 81 Ind. 433, 42- [1892] 1 Q. B. 599. Am. Rep. 142; Copenrath v. Kienby, '^ [1S92] 1 Q. B. 599. 83 Ind. 18; Northwestern, etc., Ins. '■' " There cannot be a contract by a Co. v. Blankenship, 94 Ind. 535, 544, lunatic," per Cotton, L. J., Re 48 Am. Rep. 185; Behrens v. Mc- Rhodes, 44 Ch. T). 94, 105 [1890]. Kenzie, 23 Iowa, 333, 92 Am. Dec. "A man, while of unsound mind, en- 428; Abbott v. Creal, 56 Iowa, 175, 9 tered into a contract to purchase an N. W. 115; Bokemper v. Hazen, 96' estate. The contract was accordingly Iowa, 221, fi4 N. W. 773; Swartwood' voidable,'' per Byrne, J. Bald-wyn v. v. Chance, 131 Iowa, 714, 109 N. W. Smith, [1900] 1 Ch. 588, 590. 297; Gribben v. Maxwell, 34 Kans. 8, "Brodrib v. Erodrib, 56 Cal. 563; 7 Pac. 584; Smith's Committee v. More -v. Calkins, 85 Cal. 177, 24 Pac. Forsythe, 28 Ky. L. Rep. 1034, 90 ' 729; Strodder v. Southern Granite S. W. 1075; Flach v. Gottschalk Co., Co., 99 Ga. 595, 27 S. E. 174; Boll- 88 Md. 368, 41 All. 908, 42 L. R. A, 38 Formation of the Contract. principle applies to the case of a deed made by a lunatic.^^ So negotiable paper executed by a hmatic is binding in the hands of an innocent holder for value, if the lunatic received a proper consideration therefor.'^* It seems generally assumed in these cases that if any consideration received by the lunatic can be and is restored, the bargain may be rescinded."* It follows, therefore, that contracts still wholly executory are not enforcible against a lunatic."^ And probably most courts in this country would agree with the Supreme Court of Georgia in holding that the mere fact " that the other party to the contract was ignorant that the person with whom he was dealing was in fact insane, and that the existence of such insanity could not have been discovered by an ordinarily reasonable and prudent person, does not make such 745, 71 Am. St. Eep. 41S; Shoultera t'. Allen, 51 Mich. 529, 16 X. \Y. 888; Schaps I'. Lelmer, 54 Jlinn. 208, 55 N. W. 911; Morria v. Great Northern Ey. Co., 67 Minn. 74, 69 X. W. 02S; Matthiessen, etc. c. McMahon's Adm., 38 N. J. L. 536; ililler v. Barber, 73 N. J. L. 38, 62 Atl. 276; Young t\ Stevens, 48 N. H. 133, 2 Am. Eep. 202, 97 Am. Dec. 592; Mutual Life Ins. Co. r. Hunt, 79 N. Y. 541; Hos- ier i\ Beard, 54 Ohio St. 308, 43 X. E. 1040, 35 L. R. A. IGl, 56 Am. St. Eep. 720; Beals r. See, 10 Pa. St. 56, 49 Am. Dec. 573; Kneedler's Ap- peal, 92 Pa. St. 428; Cooney v. Lin- coln, 21 E. I. 240, 42 Atl. 867, 79 Am. St. Eep. 709 ; Sims v. McLure, 8 Eich. Eq. 2S6, 70 Am. Dec. 196. "^Eonan v. Bluhm, 173 111. 277, 50 K. E. 694; Eldredge v. Palmer, 1S5 in. 618, 57 N. E. 770, 76 Am. St. Eep. 59; Thrash v. Starbuck, 145 Ind. 673, 44 N. E. 543; Ashcraft v. De Armond, 44 Iowa, 229; Harrison v: Otley, 101 Iowa, 652, 70 N. W. 724; ityers r. Knabe, 51 Kans. 720, 33 Pae. 602 ; Rusk v. Fenton, 14 Bush, 490, 29 Am. Eep. 413; Smith's Com- mittee V. Forsythe, 28 Ky. L. Eep. 1034, 90 S. W. 1075; McKenzie p. Donnell, 151 Mo. 431, 52 S. W. 214; Yauger v. Skinner, 14 N. J. Eq. 389; Eiggan v. Green, 80 X. C. 236, 30 Am. Eep. 77. Contra, Nicliol v. Thomas, 53 Ind. 42; Hovey u. Hobson, 53 Me. 451, 55 Me. 256, 275, 89 Am. Dec. 705; Bates v. Hyman (Miss.), 28 So. 567; Dewey v. Allgire, 37 Neb. 6, 55 X. W. 276, 40 Am. St. Eep. 468 ; \Yager ):. Wagoner, 53 Sah. 511, 73 X. \Y. 037; Smith i\ Eyan, 191 X. Y. 452, 84 N. E. 402; Gil- gallon V. Bishop, 46 X. Y'. App. Div. 350; Crawford r. Scovell, 94 Pa. St. 48, 39 Am. Eep. 766. °^ Lancaster Bank r. Moore, 78 Pa. St. 407, 21 Am. Eep. 24; Snyder v. Laubach (S. C. Pa.), 7 \Y. N. C. 464, 9 C. L. J. 496. Contra. Hosier V. Beard, 54 Ohio St. 308, 43 X. E. 1040, 35 L. E. A. 161, 56 Am. St. Eep. 720, but is not binding if he did not; ^TeClain v. Davis, 77 Ind. 419; Moore v. Hershey, 90 Pa. St. 196; Wirebach r. Bank, 97 Pa. St. 543, 39 Am. Eep. 821. "So held in Wooley v. Gaines, 114 Ga. 122, 39 S. E. 892, 88 Am. St. Eep. 22. "'^Baldwyn v. Smith, [1900] 1 Ch. 588; Corbit P. Smith, 7 Iowa, 60, 71 Am. Dec. 431; Y'nung p. Stevens, 48 X. H. 133, 2 Am. Eep. 202, 97 Am. Dec. 592. Capacity of Paeties. 39 a contract valid and binding." °^ The fact that the consider- ation has been spent and, that the lunatic without fault is un- able to restore it does not seem to be material if he cannot do so, for whatever cause, the contract is binding.®^ The require- ment of restoration of the consideration as a condition of rescission is not universal. Of course jurisdictions which hold the contract of a lunatic is void cannot enforce such a condition, and accord- ingly some of the older decisions hold that restoration of the con- sideration is unnecessary.^* Even though the consideration for a lunatic's promise does not inure to his benefit as has been seen, the transaction has none the less been held binding in England^* and the English decision finds support in this country,®" but the contrary has been held in Indiana, even though the contract was a fair one.''^ Where the insanity was known to the person dealing with the lunatic, an ofEer to restore the consideration is not re- quired as a condition precedent to rescission,®^ and the same result has been reached where the bargain was an unfair one.®^ '°Orr V. Equitable Mortgage Co., 107 Ga. 499, 33 S. E. 708. See also Jacks V. Estee, 139 Cal. 507, 73 Pac. 247; Woolley v. Gaines, 114 Ga. 122, 39 S. E. 892, 88 Am. St. Eep. 22; Hull c. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. Kep. 405. "Scanlan v. Cobb, 85 111. 296; Burnham v. Kidwell, 113 111. 425; Young V. Stevens, 48 N. H. 133, 2 Am. Eep. 202, 97 Am. Dec. 592; Matthiessen v. McMahon's Adm., 38 N. J. L. 53G; Yauger v. Skinner, 14 N. J. Eq. 389; Mutual L. I. Co. v. Hunt, 79 N. Y. 541 ; Eiggan v. Green, 80 N. C. 236, 30 Am. Rep. 77; Lan- caster Bank v. Moore, 78 Pa. St. 407, 21 Am. Rep. 24; Sims i;. McLure, 8 Rich. Eq. {S. C.) 286, 70 Am. Dec. 196. See, however, Strodder v. South- em Granite Co., 99 Ga. 595, 27 S. E. 174; Hale v. Kobbert, 109 Iowa, 128, 130, 80 N. W. 308. '' Breckenridge f. Ormsby, 1 J. J. Marsh. 236, 245, 19 Am. Dec. 71; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Gibson v. Soper, 6 Gray, 279, 66 Am. Dec. 414; Flanders v. Davis, 19 N. H. 139. ™ Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599. "Abbott V. Creal, 56 Iowa, 175, 9 N. W. 115; Blount v. Spratt, 113 Mo. 48, 20 S. W. 967; Bank v. Sneed, 97 Tenn. 120, 36 S. W. 716, 56 Am. St. Rep. 788. " Northwestern, etc., Ins. Co. v. Blankenship, 94 Ind. 535, 48 Am. Eep. 185; Physio-Medical College v. Wil- kinson, 108 Ind. 314, 9 N. E. 167. ' "^ Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599; Allore c. Jewell, 94 U. S. 506, 24 L. ed. 260 ; Harding V. Wheaton, 2 Mason (U. S.), 378; Henry v. Fine, 23 Ark. 417; Ronan V. Bluhn, 173 111. 277, 50 N. E. 694; "^Hale V. Kobbert, 109 Iowa, 128, 80 N. W. 308; Clark v. Lopez, 75 Miss. 932, 23 So. 648, 957 ; Halley v. Troester, 72 Mo. 73 ; Sims v. MoLure, 8 Rich. Eq. (S. C.) 286, 70 Am. Dec. 196. 40 FoEMATio:sr of the Conteact. § 34. Necessaries. — For the same reason as in the case of infants, lunatics are liable for necessaries furnished them.®* As pointed out,®^- under the heading of infancy, this liability should, be regarded as ^uasi-contractual' rather than contractual.'"'' Hence it is not necessary for the existence of the liability that any ex- jDress contract be made, as is shown by the fact, that even though a lunatic is under guardianship and, consequently, totally inca- pable of contracting, he can, nevertheless, bind himself for neces- saries if not furnished with them by his guardian.®^ As in the case of infants also a lunatic's liability is measured not by the promises he may hare made but by the value of the necessaries furnished him.'^* As to what constitutes necessaries, the same principles that have been discussed previously in case of infants are applicable. In the case of a lunatic medical services, including aursing. and other protection usual for insane persons, may be Hardy r. Dyas, 203 111. 211, 07 X. E. 852; Thrash r, Starbuck, 145 Ind. C73, 44 N. E. 543) Sheelian r. Allen, 67 Kans. 712, 74 Pac. 245; Waller r. Julius, 68 Kans. 314, 74 Pac. 157, 35 L. E. A. ICl; Rhoades v. Fuller, 139 Mo. 179, 40 S. W. 7i;0; Creekmore v. Baxter, 1-21 N. C. 31, 27 S. E. 994; Hosier v. Beard, 54 Ohio St. 398, 43 N. E. 1040, 56 Am. St. Rep. 720; Crawford i. Scovell, 94 Pa. St. 48, 39 Am. Rep. 70(1; Lincoln v. Buck- master, 32 Vt. 652. "Baxter v. Portsmouth, 5 B. & C. 170; Ex parte Northington, 37 Ala. 496, 79 Am. Dec. 07; Borum r. Bell, 132 Ala. 85, 31 So. 454; Henry v. Fine, 23 Ark. 417; Ratliff r. Baltzcr'a Adm (Idaho), 89 Pac. 71, Sawyer i;. Lufkin, 50 :Me. 308; Kendall V. May, 10 Allen, 59; Gross v. Jones, 89 Miss. 44, 42 So. 802; Reando v. Misplay^ 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13; Seeva i: True, 5S X. H. 027; Van Horn v. Hann, 39 N. J. L. 207; Waldron v. Davis, 70 N. J. L. 788. 58- Atl. 293. 66 L. R. A. 591; Richardson v. Strong, 13 Ired. L. 106, 55 Am. Dec. 430; Surles v. Pipkin, 09 N. C. 513; Kneedler's Aiip., 92 Pa. St. 428; Blaisdell r. Holmes, 48 Vt. 492. ''■• See supra, § 21.' •'Re Rhodes, 44 Cli. D. 94; Henry r. Fine, 23 Ark. 417, 418; Sceva v. True, 53 N. H. 627.' Iti Re Rhodes, at p. 107, Lindley^ L. J., deprecated " The unfortunate terminology of our law, owing to which the expression ' implied contract ' has been used to denote not only a. genuine contract established by inference, but also an. obligation which does not arise from any real contract, but which can be enforced as if it had a contractual origin. Obligations of this class are called by civilians ohligationes quasi ex contractu." "Creagh r. Tunstall, 98 Ala. 249, 12 So. 713; Sawyer v. Lufkin, 56 Jle. 308; Darby !;. Cabanne, 1 Mo. App. 126; Stannard r. Burns, 63 Vt. 244, 22 Atl. 460; Maughan r. Burns, 64 Vt. 316, 23 Atl. 583. "Surles V. Pipkin, 69 N. C. 513. Capacity of Pabties. 41 necessary.^® Necessaries furnished to the wife of the lunatic are also a necessary expense for which he may be held liable.™ § 35. "What constitutes; insanity. — In the early decisions little distinction is made between different kinds of lunatics or different kinds of insanity. It was indeed recognized from early times that, a lunatic might enjoy lucid intervals and contracts made during, such intervals have been regarded as good.^^ This rule, of course, still prevails.'^ In modern times it has, however, been, recognized, that a person may be insane for some purposes and yet be perfectly able to reason upon other matters. The question, however, should and, according to the great weight of modem authority, does- depend upon whether the alleged lunatic had sufficient reason to enable him to understand- the nature and effect of the act in dispute.'^^ It is not necessary, however, that a person should have average mental capacity in order to make a valid bargain. Mere weakness of mind or a condition approaching imbecility is not sufficient to constitute what the law regards as insanity.^* Such condition, however, is highly important, for frequently advantage is. taken by designing persons of those in this way partially dis- " Richardson v. Strong, 13 Ired. L. III. 269; Raymond v. Wathen, 142. 106, 55 Am. Dec. 430. Ind. 367, 41 N. E. 815; Ehvood r. "Drew V. Nunn, 4 Q. B. D. 661,; O'Brien, 105 Iowa, 239, 74 N. W. 740; Pearl v. McDowell, 3 J. J. Marsh. Swartwood i'. Chance, 131 Iowa, 714, 659, 20 Am., Dec. 199; Shaw v. 109 N. W. 297; Meigs v. Dexter, 172 Tliompson, 16 Pick. 198, 26 Am. Dec. Mass. 217, 52 N. E. 75 ; Chadwell v. 655; Stuckey v. Mathes, 24 Hun, 461. Reed, 198 Mo. 359, 95 S. W. 227; "Beverley's Case, 4 Co. Rep. 123b; Dewey v. Allgire, 37 Neb. 610, 40 Am. Hall V. Warren, 9 Ves. 605.. St. Rep. 468; Dennett v. Dennett, 44 "Critchfield v. Easterday, 26 App. N. H. 531, 84 Am. Dec. 97; Sbar- D. C. 89; Lilly v. Waggoner, 27 111. bero v. Miller (^^. J. Eq.), 65 Atl. 395; Jones' Admr. v. Perkins, 5 B. 472; Aldrich v. Bailey, 132 N. y. 85. Mon. (Ky.) 222; Richardson v. 30 N. E. 264; Sprinkle !;. Wellborn, Smart, ,152 Mo. 623, 54 S. W. 542, 75 140 N. C. 163, HI Am. St. Rep. 827 ; Am. St. Rep. 488; Gingrinh v. Rogers, Buckey i,-. Buckey, 38 W. Va. 168, 18 69, Neb. 527, 96 N. W. 156; Wright S. E. 383. V. Market Bank (Tenn. Cli. App.), " Soberanes. v. Soberanes, 106 Cal. 60 S. W. 623 ; McPeck v. Graham, 56 1, 39 Pac. 39, 527 ; Harrison v. Otley, W. Va. 200, 49. S. E. 125-. 101 Iowa, 652, 70 N. W. 724; En- "Baldwyn f. Smith, [1900] 1 Ch. twistle v. Meikle, 180 111. 9, 21, 54 588; Parker v. Marco, 76 Fed. Rep. N. E. 217; MuUoy u. Ingalls, 4 Neb. 510; Pike v. Pike, 104 Ala. 642, 16 115; Ducker v. Whitson, 112 N. C. 44, So. 689; More v. Calkins, 85 Cal. 177, 16 S. E. 854. 24 Pac. 729; Searle v. Galbraith, 73 42 FoBMATioisr of the Conteact. qualified to protect themselves, and evidence of v^eakness of mind, together with other circumstances, may be important in estab- lishing that a bargain is voidable for fraud or undue influence, although it fails to establish insanity. If insanity is established the burden is upon one who claims that a transaction took place during a lucid interval to show sufficient capacity at the time in question,^'' but this rule has been denied if the insanity is only occasional and intermittent."^ § 3 6. During guardianship lunatics' bargains are void. — In the discussion thus far it has been assumed that the lunatic was not under guardianship. When a guardian is appointed he thereupon becomes vested with the control of the property of his ward, and he alone is capable of transferring it." It may also be assumed that all contracts of a lunatic made during guardianship would be held void. The guardian represents the lunatic for the purpose of all business transactions. So far is this doctrine carried that even though the lunatic has a lucid interval or regains his reason while the guardianship still exists a transaction with him is void.'^* The contrary has, however, been held where the lunatic had regained his reason and the guardianship had been allowed to fall into disuse although not legally terminated.''^ Stress is laid in many of the cases upon whether the lunatic has been so found by inquisition. If so found there are statements in the books that his transactions are void. The truth seems to be, however, that the finding merely establishes the fact of insanity, and the legal effect of the transaction is the same as it would be in any case of proved insanity. It is the appointment of a "> Rogers v. Rogers (Del.), 66 r. Jones, 116 X. Y. 67, 22 N. e. 446, Atl. 374; Richardson r. Smart, 152 5 L. R. A. 632, 15 Am. St. Rep. 3S6; Mo. 023, 54 S. W. 542, 75 Am. St. Sander r. Savage, 75 N. Y. App. Div. Rep. 488 ; Gingrich v. Rogers, 69 Neb. 333. 527, 06 N. w. 156; Fisliburne r, Fer- " i?e Walker, [1905] 1 Ch. 160; guson, 84 Va. 87, 4 S. E. 575. ' Gingrich r. Rogers, 69 Neb. 527, 96 "ilcPeck r. Graham, 56 W. Va. N. W. 156; Carter i: Beckwith 128 200, 49 S. E. 125. X y. 312, 28 N. E. 582; Sander p. "Re Walker, [1905] 1 Ch. 160; Savage, 75 N. Y. App. Div. 333. Cockrill v. Cockrill, 92 Fed. Rep. 811, "Thorpe v. Hanscom, 64 Minn. 201, 34 C, C. A. 254; McKenzie v. Donnell, 66 N. W. 1; Blaisdell r. Holmes 48 151 Mo. 431, 52 S. W. 214; Hughes Vt. 492. Capacity of Paeties. 43 guardian which works the change in the legal power of a lunatic to act for himself.^" § 37. Drunkenness — When it incapacitates. — It is not every degree of intoxication that renders a person incapable in a legal sense. In order to make out incapacity it is necessary to prove that a man was so far intoxicated as to be incapable in fact of understanding the nature of the transaction in which he €ngaged.^^ § 38. Drunkards' bargains voidable. — If intoxication is so extreme as to produce legal incapacity, the effect is generally held to be the same as that of insanity; consequently, a contract or sale made under such circumstances is voidable.^^ In some juris- dictions where insanity is said to make a lunatic's transactions void, extreme intoxication is also said to make bargains void and '"Wolcott V. Conn. Life Ins. Co., 137 Mich. 309. In Hughes v. Jones, 116 y. Y. 67, 22 X. E. 446, 5 L. R. A. 632, 15 Am. St. Rep. 386, the rule is stated that before office found though within the period during which the lunatic is declared by the finding to have been insane, the evidence of in- capacity is only presumptive and may be overthrown by satisfactory evi- dence of sanity, but " the presump- tion whether conclusive or prima facie extends to all the world, and includes all persons whether they have notice of the inquisition or not." By statute in New York after in- quisition and confirmation a lunatic's contracts are void. 2 Rev. St. (6th » Nissen v. Bendixsen, 69 Cal. 521, Warner, 47 Minn. 250, 252, 50 N. W. 11 Pae. 29; Rea v. Durkee, 25 III. 77, 28 Am. St. Rep. 362; Oatman v. 503; Raynea d. Bennett, 114 Mass. Watrous, 105 N. Y. Suppl. 174. 424; Tebbets v. Hapgood, 34 N. H. Compare Wenz i\ McCann, 107 N. 420; Ott V. Hentall, 70 N. H. 231, Y. App. Div. 557, 95 N. Y. Suppl. 47 Atl. 80, 51 L. R. A. 226; Clothier 462. V. Sigle (N. J. L.), 63 Atl. =' War c. Huntly, 1 Salk.- 118; 865. Liddlow v. Wilmot, 2 Stark. 86. " Brinckerhoff i'. Briggs, 92 111. "'^ Dixon v. Hurrell, 8 C. & P. 717. App. 537; Sturbridge v. Franklin, == Litson r. Brown, 26 Ind. 489; 160 Mass. 149, 33 I>r. E. 669; Clothier Hunt v. Hayes, 64 Vt. 89, 23 Atl. 920, V. Sigle (N. J. L.), 63 Atl. 865; 15 L. R. A. 661, 33 Am. St. Rep. Sturtevant v. Starin, 19 Wis. 268. 917. In both these cases it should Compare Baker v. Oughton, 130 Iowa, be noticed that the wife's means were 35, 106 N. W. 272. derived from her husband. In the '"Reid V. Teakle, 13 C. B. 627; Vermont case as an allowance ex- Hoey V. Heehtman, 2 Cal. App. 120, pressly for her support, and appar- 83 "Pac. 85 (statutory) ; Bergh v. ently sufficient for that purpose. 52 Formation of the Conteact. shire case,^* the conn in a careful opinion held that the wife's right was not limited by her possession of means suiScient to sup- ply her reasonable wants. On principle, this decision seems sound. Certainly, if the husband is bound to support his wife when she is living with him in spite of the fact that she has means of her own, she ought to be allowed to pledge his credit if he fails lu y.n-form that obligation. The early English decisions went on the mistaken idea of an agency implied in fact instead of a right given by law. Certainly, the fact that the wife has separate property, if it is inadequate for her support, will not prevent her from pledging her husband's credit."' The wife herself at common law could not be made liable even for nec- essaries.^'' Xow by statute in a few States, her separate estate is bound though she did not buy the necessaries.^' If credit is in fact given to the wife, she alone will be liable even though the circumstances were such that she might ■have pledged her husband's credit."'' The word " necessaries," in connection with married women, seems to have a wider mean- ing than when used in regard to infants. In a Massachusetts case,^" the court said: "As a general rule the term 'necessaries.' applied to a wife, is not confined to articles of food or clothing required to sustain life, or to preserve decency, but includes such articles of utility as are suitable to maintain her ac- cording to the estate and degree of her husband." Accord- "Ott i: Hentall, 70 N. H. 231, 47 =» Eontley v. Griffin, 5 Taunt. 3.56; Atl, SO. Pee also Eiler v. CruU, 99 llctcalfe v. Shaw, 3 Campb. ii ; Shel- Ind. 375; Arnold r. Brandt, IG Ind. ton v. Pendleton, IS Conn. 417; Tay- App. 169, 44 X. E. 936; Scott r. lor v. Shelton, 30 Conn. 122; Halle Carothers, 17 Ind. App. 673, 47 X. v. Einstein, 34 Fla. 5S9, 16 So. 554; E. 389; Thorpe r. Shapleigh, 67 Jle. Connerat i. Goldsmith, 6 Ga. 14; 235; Dolan l. Brooks, 16S Mass. 350, Dola,n f. Brooks, 168 ilass. 350, 47 353, 47 N. E. 408; Prescott )'. Web- X. E. 408; Swett r. Penrice, 24 Miss, ster, 175 Mass. 316, 56 N. E. 577. 416; Tnttle v. Hoag, 46 Mo. 38, 2 =' Arnold v. Brandt, 16 Ind. App. Am. Eep. 481; Hill c. Goodrich, 46 169, 44 X. E. 936; Preseott r. Web- X. H. 41; Stammers r. Macomb, 2 ster, 175 Mass. 316, 56 X. E. 577. Wend. 454; Simmons r. McElwain, =°^Iarshan r. Button, 8 T. R. 545. 26 Barb. 420; Catron i.\ Warren, 1 " Starr -v. Curtis, Annot. St. 111. Coldw. 358 ; Carter i: Howard, 39 (1896), c. 08, § 15; Iowa Code Vt. 106; Zent v. Sullivan (Wash.), (1897), § 3165; ilo. Rev. St. (1899), 91 Pac. 1088. § 4340; Hill's Annot. Laws Or. =° Raynes v. Bennett, 114 Mass. (1892), § 2874. 424, 429. Capacity of Parties. 53 ingly the court' refused to say, as matter of law, that a gold chain and locket and a gold watch and chain were not necessaries, and evidence that the husband wore diamonds and kept a fast horse was held to be admissible.^" The question whether money lent to the wife on the credit of her husband for the purchase of necessaries and which is, in fact, expended by her for necessaries can be recovered from the husband by the lender should be governed by the same principles previously dis- cussed under the heading of infancy and insanity j*-*- but there is an additional circumstances in the case of husband and wife to which attention is not always directed. If the money is loaned on the credit of the wife there seems no possible ground for hold- ing the husband liable. The English authorities have held broadly that the husband is not liable,*^ and these cases have been followed to some extent in this country.^* In equity the husband, on the other hand, has been held liable.^* In the decisions both at law and in equity it does not seem generally to have been regarded- as material whether the credit was in fact given by the lender to the husband. This seems, however, a vital point and the import- ance of it is bro\ight out in a recent Massachusetts decision.^^ " See further, Phillipson v. Hayter, Eep. 841 ; Gill i: Read, 5 H. i. 343,. L. R. 6 C. P. 38; Shelton v. Hoadley, 73 Am. Dec. 73. 15 Conn. 535; Clark v. Cox, 32 Mich. "Harris v. Lee, 1 P. Wma. 482; 204; Sauter v. Scrutchfield, 28 Mo. Matter of Wood's Est., 1 De G. J: Agp. 150. Under an Illinois statute & S. 465; Jenner v. Morris, 3 De G. a waist of Honiton lace, costing $200, F. & J. 45 ; Deare v. Soutten, L. R. was held a " family expense " for 9 Eq. 151 ; Kenyon v. Farris, 47 which a wife could pledge her hus- Conn. 510, 3G Am. Rep. 80; Reed v. band's credit. Ross v. Johnson, 125 Crissey, 63 Mo. App. 184; Walker v. HI. App. 65. A set of " Stoddard's Simpson, 7 Watts & S. (Pa.) 83, 42 Lectures" was held not necessaries Am. Dec. 216. See, however, Leup- in Shumau v. Steinel, 129 Wis. 422, pie v. Osborn's Ex., 52 N. J. Eq. 637, 109 N. W. 74, 116 Am. St. Rep. 961. 29 Atl. 433, where the court refused "See §§ 24, 34. to apply the rule to a case where "Knox V. Bushell, 3 G. B. (N. S.) the husband's default was the re- 334; Paule v. Goding, 2 F. & F. 585. suit of misfortune. " Zeigler v. David, 23 Ala. 127 ; " Skinner v. Tirrell, 159 Mass. 474, Gilbert's Ex. v. Plant, 18 Ind. 308; 34 N. E. 692, 21 L. R. A. 673, 38 Anderson v. Cullen, 16 Daly, 15; Am. St. Rep. 447. It is perhaps a, Schwarting v. Bisland, 4 N. Y. Misc. fair implication from the decision Rep. 534; Marshall v. Perkins, 20 that the court would not have al- E. I. 34, 37 Atl. 301, 78 Am. St. lowed recovery even though the 54 FOEMATION OF THE Coiq'TEACT. * § 49. Corporations. — Corporations derive their power from the government which creates them, and if they act beyond the limits of power given them by that government, their acts are at least unwarranted by law and, according to many authorities, abso- lutely void. It is beyond the scope of this work to enter upon a full discussion of the law of ultra vin's, but the effect upon contracts to sell and sales made by a corporation without charter power to enter into such a transaction may be briefly stated. If the contract in question is wholly executory on both sides it will not be enforced.^" It is unnecessary to decide in such cases whether the invalidity is due to lack of power or simply to violation of authority. In the case of contracts which have been executed wholly or partly on either side the distinction becomes important. All jurisdictions agree in allowing some relief to the party which has parted with consideration, but the grounds and the measure of recovery differ. The view which has the sup- port of perhaps a majority of the most authoritative courts is that the contract is absolutely void because the corporation was wholly lacking in capacity to make such a bargain and, con- sequently, that recovery must be had. on principles of quasi-con- tract, for the benefit that has been rendered to or by the corpora- tion rather than for what was actually promised.^'^ A niimber of American courts, however, refuse to adopt this view and probably with greater justice hold that the contract is not void, that the corporation in fact made it and that it is merely a question of public policy, using the words in a broad sense, whether the con- money had been borrowed on the decisions collected in 29 Am. & Eng. credit of the husband, but the de- Encyc. 49. cision was primarily rested on the " Central Transportation Co. v. ground that the wife borrowed the Pullman's Co., 130 U. S. 24, 11 Sup. money on her own credit. Ct. 478, 35 L. ed. 55; Pullman's Co. ''Ashbury Ey. Carriage Co. v. v. Central Transportation Co., 171 Kiche, L. R. 7 H. L. 653; Atty.-Gen. V. S. 138, 18 S. Ct. 808, 43 L. ed. V. Gt. Eastern Ry. Co., 5 A. C. 473; 108; Davis r. Old Colony R. R. Co., Camden, etc., R. R. Co. v. May's 131 Mass. 258, 41 Am. St. Rep. 2-21 ; Ijanding, etc., R. R. Co., 48 N. J. L. Tennessee Ice Co. v. Raine, 107 Tenn. 530, 7 Atl. 523; Jemison v. Citizens' 151, 64 S. W. 29. See many decisions Sav. Bank, 122 N. Y. 135, 25 N. E. collected in 29 Am. & Eng. Encyc. 264, 19 Am. St. Rep. 482. See many 54. Formalities of the Conteact. 55 tract should be enforced. These courts hold that if the contract has been partly executed on either side, the other party will not be allowed to set up the defense of ultra vires in order to defeat liability on a promise made in return.^® =«Heims Brewing Co. v. Flannery, E. 496, 92 Am. St. Rep. 761. See 137 111. 309, 27 N. E. 286; Eehberg many decisions collected in 29 Am. V. Tontine Surety Co., 131 Mich. 135, & Eng. Encyc. 57. See also infra, 91 N. W. 132; Vought v. Eastern § 663. Bldg. Assoc, 172 N. Y. 508, 65 N. CHAPTER III. Formalities of the Conteact. Section 60. Contracts to sell or sales may be written or oraL 51. Statutes of frauds in England and America. 52. Statute of frauds in this act. 53. "A contract to sell or a. sale." 54. Contracts of work and labor. The English rule. 55. American rules. 56. Exchanges. 57. Mortgages. 58. Partnership agreements. 59. Agreements of compromise. eO. " Of any goods." 61. Crops and fruotus industriales. 02. Trees and fructus naturales. 63. Water and ice. 64. Jlinorals, manure. 65. Fixtures. 66. Buildings. 67. Clioses in action. 68. Undivided interest in goods. 69. " Of the value of."' 70. " Five liundred dollars or upwards." 71. " Shall not be enforceable by action." 72. Third persons cannot talce advantage of tlie statute. 73. Satisfaction of the statute. 74. Acceptance and receipt is not equivalent to delivery. 75. Acceptance. 76. Time of acceptance. 77. Acceptance by dealing with the goods as owner. 78. Eight of objection. 79. Right of rejection. 80. Modern English rule. 81. Who may accept. 82. Parties may withdraw before the satisfaction of the statute. 83. Acceptance under a mistake. 84. Actual receipt. 85. Forcible taking or giving of possession. 86. Receipt of goods in the hands of a third person. 87. New York rule. 88. Receipt by delivery at a particular place. 89. Receipt by delivei-y to a carrier. 90. Receipt of goods in the hands of buyer. [56] Formalities of the Contjejact. 57 Section 91. Receipts of goods in the hands of seller. 92. Symbolic receipt. 93. Documents of title. 94. Part of the goods. 95. Chosea in action. 96. Acceptance and receipt present questions of fact. 97. " Or give something in earnest to bind the contract." 98. " Or in part payment." 99. Time of payment. 100. '■ Some note or memorandum in writing of the contract or sale." 101. Form of memorandum. 102. Contents of memorandum — Parties. 103. Contents of memorandum — Price. 104. Contents of memorandum — Other terms of tlie contract. 105. Certainty of description. 106. Intent to make a memorandum is not requisite. 107. Separate documents — Physical attachment. 108. Separate documents — Incorporation by referencej 109. Sepaj-ate documents. — Incorporation by necessary inference. 110. Separate documents — Reference to the same transaction. 111. Consistency of separate documents. 112. Signature. 113. " By the party to be charged." 114. "Or his agent in that behalf." 115. Auction sales. 116. Brokers' notes. 117. Time of making the memorandum. 118. Written contracts may be varied by subsequent agreement at common law. 119. Contracts within the Statute of Frauds — Rescission. 120. Variation of contract within the Statute of Frauds — General doctrine. 121. Variation of contracts within the statute — Massachusetts doctrine. 122. Amount of variation. 123. Part performance of varied agreement. 124. Hickman v. Haynes. 125. Performance of part of contract within the statute. 126. Conflict of laws. § 50. Contracts to sell, or sales, may be written or oral — Pro- visions of the Sales Act. — Sec. 3. FORM OF CONTRACT OR SALE— Subject to the provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly 58 FOBMATIOX OF THE CoNTEACT. by word of mouth, or may be inferred from the conduct of the parties.^ This section states an obvious rule of the common law. Aside from Statutes of Frauds the only importance of a writing in a contract to sell or a sale is that it furnishes evidence which can not be varied by parol. Even though parties expressly contract that subsequent agreements shall not be valid unless in writing, a subsequent oral agreement is not thereby invalidated, for the later agreement indicates a rescission of the earlier.-'" § 51. Statutes of Frauds in England and America. — The seven- teenth section of the English Statute of Frauds" is as follows: "And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June [a. d. 1677] no contract for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling 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 of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents there- unto lawfully authorized." In the United States a corresponding provision has been passed in all the States -but Alabama, Arizona, Delaware, Illinois, Kansas, Kentucky, Louisiana, Xew Mexico, ISTorth Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, and West Virginia. The language 9f the Ameri- can statutes is not uniform and often not quite the same in mean- ing as that of the English statute. Reference will be made here- after to these changes in wording. ' This f ollowa section 3 of the certainly is not law in this country, English act except for the omission so far as contracts to sell and sales of a proviso contained in that act: of goods are concerned. It was " Provided that nothing in this sec- thought unnecessary to insert the tion shall affect the law relating to proviso for this reason, corporations." This proviso was in- " Nichols & Shepard Co. o. ilax- serted in the English act out of son, 76 Kan. 607, 92 Pac. .54.5. See deference to the old law that cor- also National Bank v. Dutcher, 128 porations could contract only under la. 413, 104 N. W. 497, 1 L. R. A. seal. This is not law in England to- (N. S.) 142. day to its former extent, and it '29 Car, II, c. 3, § 17, FOKMAXITIKS OF THE CoNTEACT. 59 § 52. Statute of Frauds in Sales Act,— The effect of the English statute has been preserved in the English Sale of Goods Act, section 4, though the wording has been changed and elaborated. In the Sales Act, except in one or two particulars which will be hereafter referred to, the wording of the later English statute has been followed. Sec. 4. STATUTE OF FRAUDS.— (1.) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars^ or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so con- tracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such con- tract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or com- pleting thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. (3.) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. § 53. "A contract to sell or a sale." — The question was early made under the English Statute whether it applied to executory contracts to sell goods as well as to sales, and there were decisions to the effect that executory contracts were not included,* but the contrary view was afterward taken and the correctness of it confirmed by a statute known as Lord Tenterden's Act."^ This ' Amended to $100 in Connecticut 506 ; Clayton v. Andrews, i Burr, and to $2,500 in Ohio. 1201. ' Towers i;. Osborne, 1 Strange, ' 9 George IV, u. 14, § 7. 60 FOB-MATION OF THE CoNTEACT. statute is in terms merely declaratory, and such it has always been considered, so that though. Lord Tenterden's Act has never been enacted in this country there has never been any doubt that execu - tory contracts are within the terms of Statutes of Frauds.* It is probable, however, that the early English decisions in in regard to this matter have been partly responsible for the confusion of the law in this country in regard to contracts for work and labor as distinguished from contracts to sell. The words of the Sales Act make it clear that executory contract* are covered. A contract to bequeath personal property has beea held within the statute.''^ § 5i. Contracts of work and labor — The English rule. — Con- tracts for work and labor have never been within the terms of Statutes of Frauds. It is, therefore, necessary to mark the line which divides such contracts from contracts to sell. The earljr English decisions* suggested different rules which have been influential upon the decisions in this country but which have been superseded in England by the decision of Lee r. GriiBn,^ in which it was decided that a contract for the manufacture of a set of false teeth to the order of the defendant's testatrix was a con- tract for the sale of goods. The rule in that case was thus stated by Blackburn, J. : " If the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; but if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered. The case of an attorney employed to prepare a, deed is an illustration of this latter proposition. It cannot be said that the paper and ink he uses in the preparation of the deed are goods sold and delivered. The case of. a printer print- ing a book would most probably fall within the same category * * *. I do not think that the test to apply to these cases is whether the value of the work exceeds that of the materials used in its execution; for, if a sculptor were employed to execute a "See case.s cited itifm, § 55; also 'Rondeau v. Wyatt, 2 H. Bl. 63; Barr v. Satcher, 72 S. C. 35. Garbutt r. Watson, 5 B. & Aid. C13; 'Wallace v. Long, 105 Ind. 522, Clay v. Yates, 1 H. & X. 73. 5 N. E, 666, 55 Am. Rep. 222. '1 B. & S. 272. FOEMAI^ITIES 01? THE CoNTEACT. 61 work of art, greatly as his skill and labor, supposing it to be of tie highest description, might exceed the value of the marble on "which he worked, the contract would, in my opinion, nevertheless he a contract for the sale of a chattel." This rule has been carried to the extent of holding that a contract to paint a por- trait is a contract for the sale of goods.-''* Canada follows the Eng- lish decisions.-'*''' § 55. American rules. — Although the rule finally reached in lEngland is absolutely logical and is the only rule that has ever been suggested for which so much can be said, it has not been widely followed in this country. The only decisions approving it to its full extent seem to be Missouri cases. ■'^ The rule most commonly adopted is what is known as the Massachusetts, rule, which was first laid down by Chief Justice Shaw, in Mixer v. Howarth.-*^ This was an action to recover the price of a buggy made to the defendant's order and the court held the plaintiff en- titled to recover. Chief Justice Shaw stated the principles gov- erning the case as follows: "When the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immediately. * * * But where it is an agreement with a workman to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be com- pleted in futuro, it is not a sale until an actual or constructive delivery and acceptance; and the remedy for not accepting is on the agreement." This rule has been followed both in Massa- " Isaacs I'. Hardy, 1 Cab. & E. 287. Mo. App. 202; Schmidt v. Rozier, 121 "•Canada Bank Note Co. v. Tor- Mo. App. 306, 98 S. W. 791. The onto Ey. Co., 22 Ont. App. 462; facts of these cases do not present "Wolfenden v. Wilson, 33 U. C. Q. B. an extreme application of tlie English j^2 rule. That last cited was u. contract " Pratt V. Miller, 109 Mo. 78, 13 of a tailor to make a customer a, S. W. 965, 32 Am. St. Rep. 636; coat and waistcoat according to a Burrell v. Highleyman, 33 Mo. App. special pattern. 183; Pike Co. v. Richardson Co., 42 "21 Pick. ,205, 32 Am. Dec. 256. Mo. App. 272; Helmera v. Nagel, 112 62 FoEMATION OF THE CoNTEACT. cliusetts'^ and elsewhere, either exactly or substantially.-'* In New York still another rule is in force. The distinction is drawn between goods to be manufactured, which are treated as not within this statute, and goods already in existence which are treated as within the statute, even though something remains to be done before they are in deliverable condition.-'^ This rule also has had a wide following in this country.'"' In the Sales " Goddard i;. Binney, 115 Mass. 450, 15 Am. Rep. 112. But if the seller is to procure the goods from a third person who manufactures them, the contract is within the statute. Smalley v. Hamblin, 170 Mass. 380, 49 N. E. 026. "Flynn v. Dougherty, 91 Cal. 669, 27 Pac. 1080, 14 L. R. A. 230; At- water v. Hough, 29 Conn. 508, 79 Am. Dec. 229; Cason r. flieely, 6 Ga. !>e4; Yoe v. Xewcomb, 33 Ind. App. 615, 71 N. E. 256; Edwards v. Grand Trunk R. Co., 48 Me. 379; Crockett r. .Scribner, 04 'Me. 447 ; Turner r. Mason, 65 Mich. 662, 32 N. W. 846; Russell V. Wisconsin Ry. Co., 39 Minn. 145, 39 X. W, 302; Brown & Hayward Co. v. Wunder, 04 Minn. 450, 67 X. W. 357; Schloss v. Josephs, 98 Minn. 442, 108 N. W. 474; Pitkin v. Noyes, 48 N. H. 294, 97 Am. Dec. 61.i, 2 Am. Rep. 218; Prescc.tt r. Locke, 51 X. H. 94. 12 Am. Rep. 55; Pawelski v. Hargreaves, 47 N. J. L. 334, 54 Am. Rep. 162; Mechanical Boiler Co. v. Kellner, 62 N. J. L. 544, 43 At). 599; Roubicek r. Haddad, 67 X. J. L. 522, 51 Atl. 93S ; Orman v. Ha'ger, 3 X"". Mex. 331, 9 Pac. 363; Puget Sound Depot v. Rigby, 13 Wash. 264, 43 Pac. 39; Meincke v. Falk, 55 Wis. 427, 13 X. W. 545, 42 Am. Rep. 722 ; Hanson r. Roter, 64 Wis. 622, 25 N. W. 530; Gross !'. Heckert, 120 Wis. 314; Wil- liams-Hayward Co. v. Brooks, 9 Wyo. 424, 64 Pac. 342. See also Sawyer V. Ware, 36 Ala. 675; Scales" v. Wiley, 68 Vt. 39, 33 Atl. 771; Wis- consin Fibre Co. v. Jeffris Lumber Co., Wis. , 111 X'. W. 237. " Parsons v. Loucks, 48 X". Y. 17, 8 Am. Rep. 517; Cooke r. Millard, 05 X. Y. 352, 22 Am. Rep. 619; Hinds v. Kellogg, 13 X. Y. Suppl. 922 ; affirmed, 133 X. Y. 536, 30 X. E. 1148; Deal v. Maxwell, 51 X. Y. 652; Warren Co. r. Holbrook, 118 X. Y. 586, 23 X. E. 908, 16 Am. St. Rep, 788; Joy v. Schloss, 15 Abb. X. C. 373; Talmadge v. Lane, 17 X'. Y. Misc. Rep. 731, 41 X. Y. Suppl. 413; Gerli !,-. Metzger, 99 X. Y. St. Rep. 858. See also Roubicek v. Haddad, 67 X. J. L. 522, 51 Atl. 938. "Bennett r. Xye, 4 Greene (Iowa), 410 (compare Mighell r. Dougherty, 86 Iowa, 480, 53 N. W. 402, 17 L. R. A. 755, 41 Am. St. Rep. 511; Lewis v, Evans, 108 Iowa, 296, 79 X. W. 81.; Dierson r. Petersmeyer, 109 Iowa, 233, 80 X. W. 389) ; Eichelberger v. M'Cauley, 5 H. & J. 213, 9 Am. Dec. 514; Bagby (\ Walker, 78 ild. 239, 27 Atl. 1033; Deal !-. Maxwell, 51 X. Y. 652 ; Higgins v. ilurray, 4 Hun, 565, 73 X. Y. 252; Rutty v. Con- solidated Fruit Jar Co,, 13 X', Y, Suppl. 331; Winship v. Buzzard. 9 Rich. 103; Suber v. Pullin, 1 S. C. 273; Mattison v. Westcott, 13 Vt. 258; Ellison v. Brigham, 38 Vt. 64; Forsyth v. Mann, 68" Vt. 116, 34 Atl. 481, 32 L. R. A. 788. See also Hientz V. Burkhard, 29 Or. 55, 43 Pac. 866, 54 Ana. St. Rep. 777. FoEMALITIES OF THE CONTRACT. 63 Act it was thought best to follow the Massachusetts rule as repre- senting, on the whole, the weight of American authority, al- though the English rule is more exact from a scientific stand- point ; as a practical rule it seems to have no advantage." § 56. Exchanges. — It is said by Chalmers in his annotation of the Sale of Goods Act that an exchange is not within the meaning of sale in the Statute or Frauds. He cites no authority for this, however, and in this country it is well settled that a contract of exchange or barter is within the statute.^* As the mischief is the same whether the bargain is one for a money price or an exchange or barter, it is desirable that the rule should be the same. Under the definition of sale in section 1, and that of price in section 9 (2) of the Sales Act, there can be no question that an agreement to transfer title to goods, or an actual transfer of title, in consideration of any personal prop- erty transferred or promised to be transferred, is within the terms of section 4 of the Act.^* § 57. Mortgages. — It is not clear at common law whether a mortgage of goods is to be regarded as within the statute. In jurisdictions where it is held that a mortgage does not transfer "By express provision of a few 478; Gorman l. Brossard, 120 Mich, statutes some definition is made. In 611, 79 N. W. 903; Rutan r. Hinch- California (Civ. Code, § 1740), agree- man, 30 N. J. L. 255; Misner v. ments to manufacture goods from Strong, 181 N. Y. 163, 168, 73 N. E. materials furnished by the manufac- 965. In Spinney v. Hill, 81 Minn, turer or another are excluded. See 316, 84 N. W. 116, however, it was Flynn v. Dougherty, 91 Cal. 669, 27 held, citing no authority, that an Pac. 1080, 14 L. R. A. 230. So in agreement to transfer stock in part Iowa (Code 1897, § 4626), contracts payment for services was not a sale requiring the expenditure of labor, of the stock within the meaning of skill, or money for producing or pro- tht Statute of Frauds. But see the curing the goods are excepted. See case of White v. Drew, 56 How. Pr. Dierson v. Peter.smeyer, 109 Iowa, 53, where a contract to give stock 233, 80 N. W. 389 ; Lewis v. Evans, for valuable information was re- 108 Iowa, 296, 79 N. W. 81. garded as within the statute, though " Raymond v. Colton, 104 Fed. Rep. the bargain was enforced because 219, 43 C. C. A. 501 ; Franklin v. the statute was held to have been Matoa Gold Min. Co., 158 Fed. Rep. satisfied. Also Wallace v. Long, 105 941, C. C. A. ; Kuhns v. Gates, Ind. 522, 526, 5 N. E. 666, 55 Am. 92 Ind. 66; Wallace v. Long, 105 Ind. Rep. 222. 522, 526, 5 N. E. 666, 55 Am. Rep. '■' See infra-, § 98. 222; Dowling v. McKenney, 124 Mass. 64 Formation of the Conteaot. title but merely creates a lien, it seems obvious that the statute must be held inapplicable. Even in jurisdictions where a mort- gage is held to transfer a title defeasible upon the condition subsequent of payment by the mortgagor, authority points in the same direction.^" In view of the definitions in section 75 of the Sales Act, it is clear that mortgages are not within the words "contract to sell" or "sale" in section 4. § 58. Partnership agreements. — A contract by which parties agree to acquire and sell, or simply to sell, property for their joint benefit is not a contract to sell, or a sale, within the terms of the statute.^-' Similarly an agreement between partners to dissolve the partnership and divide the assets is not within the statute, even though one partner, who has advanced the money with which the assets had been purchased, is by the agreement to have a lien on the property until the other partner pays his share of the debt.^^ With such cases should be contrasted a case where the agreement is that one party shall buy goods and, subsequently, resell a share of them to the other. Such a con- tract is within the statute.^^ Where choses in action are ex- pressly included in the terms of the statute the sale of a partner's interest in a business would seem also to require a writing.^* JBut otherwise such a sale is not within the statute.^"^ "G-leason t\ Drew, 9 Greenl. 79; Mass. 380, 71 X. E. 789; Buckner v. Alexander v. Ghiselin, 5 Gill, 138; Eies, 34 ilo. 357; ^SIcNealy p. Bart- Bogigian v. HassanoflF, 186 Mass. 380, lett, 123 JIo. App. 58, 99 S. W. 767; 3S2, 71 N. E. 7Sfl, See also Hel- Coleman r. Eyre, 45 N. Y. 38; Sanger frech, etc., Co. v. Houaker, 25 Ky. i: French, 1,57 N. Y. 213, 234, 51 L. Rep. 717, 76 S. \V. 342. In N. E. 979; Treat v. Hiles, 68 Wis. Cerny v. Paxton & Gallagher Co., 344, 32 N. W. 517, 60 Am. Rep. 858. Neb. , 110 N. W. 882, a debtor But see Mace v. Heath, 30 Xeb. 620, gave a chattel mortgage to his cred- 416 N. W. 918 _ _A fort iori , a cont ract itor on the faith of a promise by the of agency under which the agent is latter that, if the property when to purchase goods for th e principal sold at auction did not bring i s not w ithin the statute. Wiger v. above a certain price, he would bid Carr, Wis. , 111 X. W. 657, it in and allow the debtor to sell 11 L. R. A. (X. S.) 650. it at private sale and keep any bal- "Mason v. Spiller, 186 Mass. 346, ance above the debt. This agree- 71 N. E. 779. ment was held not within the statute. ^° Brown v. Slauson 23 Wis, 244. "'Colt V. Clapp, 127 Mass. 476; '* See in/ro, § 67. Bullard v. Smith, 139 Mass. 492, 2 « Vincent i-. Vieths, 60 Mo. App. 9. N. E. 86; Bogigian v. Hassanoff, 186 Formalities of the Conteact. 65 § 59. Agreements of compromise. — A contract by which one per- son agrees merely to surrender a claim upon goods is not "within the statute, for the title in the other person vests in him, not by virtue of a transfer from the adverse claimant, but by virtue of his own original title.^" So where parties having com- peting executions agree that the property shall be sold und«r one of them and the proceeds divided, they are not agreeing to trans- fer title to the property or to their claims but merely to divide the money received from the sale.^^ § 60. " Of any goods." — The words of the original English statute were "goods, wares, and merchandise," but the term "goods," as defined in the Sales Act, is as wide in its meaning fls the several words used in the older statute. The most trouble- some question in any attempt to define the meaning of goods relates to the di\dding line between real and personal property. Although the Statutes of Frauds in England and in this country require a bargain in regard to real estate to be in writing, it is frequently important to distinguish whether a transaction is within the section of the statute relating to lands or in that relating to goods, for there is no limitation of value in the section relating to lands, and that section also offers only one method of making the transaction enforcible, namely, a writing, whereas the sec- tion relating to goods offers several alternatives. § 61. Crops and fructus indnstriales. — It would seem, on prin- ciple, that as long as crops are growing or even standing matured in the earth, they are affixed to the realty ; and that an agreement for an immediate transfer of title to them while thus growing or standing is an agreement for the sale of an interest in land. Doubtless the earth may be used as a storehouse for articles of any kind, but to apply this reasoning, as has been done to the case of trees in a nursery,^^ is pushing it beyond the point where it is justified by the facts. In truth, the nur- seryman has attached his trees to the soil and the fact that he means to detach them later does not diminish the bond =" Clark V. Duffey, 24 Ind. 271; 47 N". "VV. 618. See also Goldbeck Holden v. Gilfeather, 78 Vt. 405, 63 v. Kensington Bank, 147 Pa. St. 267, Atl. 144. 23 Atl. 565. "'"Mygatt V. TarteU, 78 Wia. 351, ^'Jliller v. Baker, 1 Met. 2J. 66 FOEMATIOA' OF THE CoNTEACT. existing in the meantime. On the other hand it is clear, on principle, that a contract to sell a particular crop after it has been gathered is a contract for the sale of goods, even though at the time the contract was made the crop was still grow- ing (unless under a local American rule it was a contract for work and labor), for the contract is not to sell the standing crop but to sell the harvested crop. There can be no doubt that the law sup- ports this proposition^ but it does not support the criticisms as to trees in a nursery. The tendency of the decisions has been to treat crops as personal property in some cases where strict reason- ing might lead to a contrary conclusion. The vegetable products of the earth have been classified as fructus naturales and frudus industriales. In the former class are included everything which grows spontaneously, or without annual cultivation, such as trees or grass. In the second class are included crops which are the subject of yearly planting and cultivation. By a rule arbitrary, but not inconvenient, fructus industriales are treated in every case as goods, whether matured or not at the time when by the terms of the bargain they were to be sold.^° The definition of goods in the Sales Act clearly invoh'es the adoption of this rule. Some difficult questions have arisen in regard to the line dividing fructus naturales and fructus industriales. Thus, in the case of fruit, though the crop is picked annually, it is not the result of annual planting and not always of regular cultivation, but because of the annual character of the crop, together with the labor required to produce it, it has been held that a crop of peaches or other orchard " Evans r. Roberts, 5 B. & C. 820 ; Ind. 375 ; :\rorplaii(l v. Myall. 14 Bush, Watts r. Friend, 10 B. & C. 440; 474; Bryant r. Crosby, 40 Me. 9; Bowman r. Conn, 8 Ind. 58; Wain- Purner v. Piercy, 40 Md. 212, 17 Am. scott !'. Kellogg, 84 Mo. App. 621; Rep. 591; Whitmarsh v. Walker, 1 Pitlcin r. Noyes, 48 X. H. 294, 97 Met. 313; Smock r. Smock, 37 Mo. Am. Dec. 615, 2 Am. Rep. 218. If App. 56; Holt v. Holt, 57 Mo. App. the contract is to raise and sell a 272; SwaflFord f. Spratt, 93 Mo. App. crop, under the Xew York rule it is 631, 67 S. W. 701; Wimp v. Early, a contract for work and labor. Tal- 104 JIo. App. 85; Kewcomb v. madge v. Lane, 17 N. Y. ilisc. Rep. Ramer, 2 Johns. 421, note; Webster 731, 41 N. Y. Suppl. 413. r. Zielly, 52 Barb. 482; Walton r. •"Marshall v. Green, 1 C. P. D. Jordan, 65 X. C. 170; Carson v. 35; Marshall r. Ferguson, 23 Cal. Browder, 2 Lea, 701; Kerr v. Hill, 65 ; Davis r. McFarlane, 37 Cal. 634, 27 W. Va. 576. Compare Powell v. 99 Am. Dec. 340; Bull r. Griswold, Rich, 41 111. 466; Powers f. Clark- 19 111. 631; Sherry v. Picken, 10 son, 17 Kan. 218. FOBMALITIES OF THE CoNTKACT. 67 fruit is to be classed as fructus indiostriales.^^ The same has been held in regard to hops.^^ § 62. Trees and fructus naturales. — In England the court has gone to great length in supporting the validity of an oral contract to sell standing trees. In Marshall v. Green,^^ there was a parol sale of thirty-two trees " to be got away as soon as possible." After six of the trees had been cut down the seller countermanded the sale, but the buyer continued to cut and the action was brought by the seller because of this. The court held that " where the thing sold is to derive no benefit from the land, and it is to be taken away immediately, the contract is not for an interest in land." Since part of the trees had been taken away the section of the statute relating to goods was satisfied and the bargain was held to be enforeible. The same doctrine prevails in several States in this country,^* but " the courts of most of the American States that have considered the question hold expressly that a sale of growing or standing timber is a contract concerning an interest in land." ^ § 63. Water and ice. — Water when separated from a stream or "'Purner v. Piercy, 40 Md. 212, 17 566, 28 Am. Kep. 776; Coody i'. Gress Am. Eep. 591; Vulicevich i;. Skin- Lumber Co., 82 Ga. 793, 10 S. E. ner, 77 Cal. 239, 19 Pac. 424; Smock 218; Hostetter v. Auman, 119 Ind. 17. Smock, 37 Mo. App. 56. 7, 20 N. E. 506; Cool v. Lumber Co., "Rodwell V. Phillips, 9 M. & W. 87 Ind. 531; Terrell v. Frazier, 79 501 ; Frank v. Harrington, 36 Barb. Ind. 473 ; Owens v. Lewis, 46 Ind. 415. 488, 15 Am. Eep. 295; Armstrong v. "• 1 C. P. D. 35. Lawson, 73 Ind. 498 ; Jackson v. "Bostwick V. Leach, 3 Day, 476; Evans, 44 Mich. 510, 7 N. W. 79; Cain V. McGuire, 13 B. Mon. 340; Kileen v. Kennedy, 90 Minn. 414, Byasaee v. Reese, 4 Mete. (Ky.) 372, 97 N. W. 126; Harrell v. Miller, 35 83 Am. Dec. 481; Prater v. Campbell, Miss. 700, 72 Am. Dec. 154; Walton 110 Ky. 23, 60 S. W. 918; Cutler v. v. Lowry, 74 Miss. 484, 21 So. 243; Pope, 13 Me. 377; Erskine v. Plum- Lyle v. Shinnebarger, 17 Mo. App. mer, 7 Me. 447, 22 Am. Dec. 216; 66; Howe v. Batchelder, 49 N. H. Smith V. Bryan, 5 Md. 141, 59 Am. 204; Putney v. Day, 6 N. H. 430, 25 Dec. 104; Nettleton v. Sykes, 8 Met. Am. Dec. 470; Westbrook v. Eager, (Mass.) 34; Claflin v. Carpenter, 4 16 N. J. L. 81; Green v. Armstrong, Met. (Mass.) 580, 38 Am. Dec. 381. 1 Denio, 550; Bishop v. Bishop, 11 See also Sterling v. Baldwin, 42 Vt. N. Y. 123, 62 Am. Dec. 68; Mizell 306. V. Burnett, 4 Jones (N. C), 249, 69 =»Hirth V. Graham, 50 Ohio St. 57, Am. Dec. 744; Drake v. Howell, 133 33 N. E. 90, 19 L. R. A. 721, 40 N. C. 162, 45 S. E. 539; Clark v. Am. St. Rep. 641. To the same Guest, 54 Ohio St. 298, 43 N. E. 862; effect are Heflin v. Bingham, 56 Ala. Bowers v. Bowers, 95 Pa. St. 477; 68 Fobmatiojst of the Coxteact. lake becomes personalty. In the case of Jersey City v. Harrison,'' where one town had contracted to supply water to another at a speciiied price per million gallons, the court held the contract to he " a contract for the sale of goods, wares, and merchandise, as fully as if the water was to be delivered in bottles." ^^ Ice which has been cut is personal property, and a contract to sell and de- liver after cutting would be a contract to sell goods. It has even been broadly held that a sale of ice, whether the subject of the sale is ice in the water or not, is a sale of goods, owing to the ephemeral character of ice and because it can only be used and sold as per- sonalty.^^ § 64. Minerals, manure. — Minerals also, though part of the realty, may be severed and, when severed, become goods. A contract to sell severed iron ore would be a contract to sell goods even though the ore which the parties expected, or even con- tracted, should be the subject of the ^ale, was not yet mined; but any attempt to give the buyer a right in the ore before it was mined would be an attempt to transfer an interest in land.^" As to manure, the Massachusetts court said i*^ " It is till then (t};^ time when mixed with the soil) an incident of the real estate of "such peculiar character that while it remains only constructively annexed, it will be personal property if the parties interested agree so to treat it." *^ § 65. Fixtures. — The legal interest which a tenant has in articles affixed to the realty, but which he has a right to remove, is a right to sever the fixtures and revest himself with the title to them as personalty. Consequently what purports to be a sale of fixtures by a tenant to his landlord is in reality a surrender by the tenant of his right to sever. The title is already in the landlord jMiller r. Zufall, 113 Pa. St. 317, 6 =» Higgms v. Kusterer, 41 Jlich. Atl. 350; Knox r. Haralson, 2 Terni. 318, 2 X. W. 13, 32 Am. Eep. 160. Ch. 232; Buck v. Pickwell, 27 Vt. Compare State v. Pottmeyer, 33 Ind. 157; Fluharty r. ilills, 49 W. Va. 402. 446, 38 S. E. 521; Daniels r. Bailey, "See McConathy r. Lanham, 25 43 Wis. 506: Lillie v. Dunbar, 02 Ky. L. Pep. 971, 76 S. W. 535. Wis. ms, 22 N. W. 467; Seymour v. "Strong r. Doyle, 110 Mass. 92, Cushway, 100 Wis. 580, 76 N. W. 93. 769, 68 Am. St. Rep. 957. " The court, therefore, held title to "71 N. J. L. 69, 72 N. J. L. 185, the manure in question did not pasa 58 Atl. 100. to the purchaser of a farm, it hav- "71 N. J. L. 69, 70. lug been agreed that it should not. FOKMALITIES OF TUE CoNTEACT. 69 by virtue of his ownership of the real estate of which the fixtures form part. The bargain is, tliercfore, neither within the fourth section nor the seventeenth section of the English statute.^ A case where a tenant attempts to sell his fistures to a third person should be sharply distinguished. Such a transaction involves an agreement on the part of the tenant to transfer the title to them, and, therefore, it is a contract to sell goods. Even if it is con- templated that the buyer shall make the severance, he can only become owner of the property severed by virtue of the agreement that the tenant has made to transfer title. This distinction has not been sufficiently observed by the cases.*^ What are fixtures may depend to some extent upon the agreement of the parties.*'' For the same reason that a sale of fixtures by a tenant to his land- lord is not a sale of goods, so a contract by which one person agrees to make improvements on land of another who agrees to pay sub- sequently for the improvements is not within the statute, whether the agreement is made before or after the improvements have been made.*^ "Hallen r. Runder, 1 C. M. & R. 26G; Lee v. Gaskell, 1 Q. B. D. 700; South Baltimore Co. v. Muhlbach, 69 Md. 395, 16 Atl. 117, 1 L. R. A. 507. "Lee V. Gaskell, 1 Q. B. D. 700; Moody V. Aiken, 50 Tex. 65. These were both cases where a sale was made to a third person and, in both, the statute was held inopera- tive. In Lee v. Gaskell, Cockhurn, C. J., said : " Fixtures, although they could be removable during the ten- ancy, as long as they remained un- severed, are part of the freehold and you cannot dispose of tliem to the landlord or any one else as goods and chattels because they are not severed from the freehold so as to become goods and chattels." To this it should be answered that it is set- tled that the statute applies to con- tracts for the sale of goods not in existence as such, or in existence at all at the time of the bargain. The decision of the cases of Lee v. Gaskell and of Moody v. Aiken, was, nevertheless, correct. In each case the action was not between the parties to the bargain, but between the purchaser from the tenant and the landlord. The landlord had no right to set up the lack of memo- randa under the seventeenth section. If the seller and buyer are content to make an oral sale or contract to sell, no one else can say that it is invalid. See infra, § 71. Browne on the Statute of Frauds, § 234, fails to observe the importance of dis- tinguishing between a sale of fixtures to the landlord and one to a third person. See also Strong v. Doyle, 110 Mass. 92, 93. «Durkee v. Powell, 75 N. Y. App. Div. 176. See also Strong v. Doyle, 110 Mass. 92. " Frear !'. Hardenbergh, 5 Johns. 272, 4 Am. Dec. 356; Benedict v. Beebee, 1 1 Johns. 145 ; Lower v. Winters, 7 Cow. 263. See also Under- feed Stoker Co. v. Detroit Co., 135 Mich. 431, 97 N. W. 959. 70 FOEMATIOX OF THE CoNTKACT. § 66. Buildings, — Agreements are not infrequently made for the sale of buildings or of the materials in standing buildings. If the contract is to sell and deliver a house, even though the house is at the time of the bargain affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations.*^ On the other hand if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject-matter of the sale shall be severed within a short time.*^ § 67. Choses in action. — Under the English statute it is settled that choses in action are not included within the terms "goods, wares, and merchandise." Even though the chose in action in question is evidenced by a tangible document, as a certificate of stock, the rule is still applicable.*^ In this country, even under statutes similar to the English original, shares of stock are held to be included.*^ Likewise a bond and mortgage are within the *' Scoggin V. Slater, 22 Ala. 687 ; ever, Keyser v. School District, 35 Harris v. Powers, 57 Ala. 139; Long K. H. 477. V. White, 42 Ohio St. 59. See also *' See as to shares of stock, Hum- Rogers V. Cox, 90 Ind. 157, 49 Am. ble v. Mitchell, 11 A. & E. 205; Rep. 152; Whetmore r. Rhett, 12 Bradley v. Holsworth, 3 M. & W. Rich. L. 565; Brown v. Roland, 11 422; Knight p. Barber, 16 M. & W. Tex. Civ. App. 648, 33 S. W. 273. 66; Heseltine v. Siggers, 1 Ex. 856; Compare Fenlason r. Backliff, 50 Me. Tempest v. Kilner, 3 C. B. 249; 362; Powell v. McAshin, 28 :Mo. 70. Bowlby ^. Bell, 3 C. B. 284; Dun- "Lavery v. Pursell, 39 Gh. D. 508. cuft r. Albrecht, 12 Sim. 189. As to In this case the defendant sold build- choses in action generally, Colonial ing materials in a standing build- Bank v. Whinney, 30 Ch. D. 261, ing. By the terms of the sale the 283; Benjamin on Sales (5th Eng. materials were to be taken dtiwn and ed. ), 174. Compare Evans v. Davies, removed within two months. Chitty, [1893] 2 Ch. 216. J., held the contract to be one for * ilayer r. Child, 47 Cal. 142, 144; the sale of an interest in land and North v. Forest, 15 Conn. 400; Banta refused to follow the doctrine applied v. Chicago, 172 111. 204, 218, 50 X. to trees in Marshall v. Green, 1 C. E. 233, 40 L. R. A. 611; Pray v. P. D. 35, that the prospect of im- Mitchell, 60 ^le. 430; Colvin r. Wil- mediate severance took the case out liams, 3 H. & J. 38, 5 Am. Dec. 417; of the fourth section. To the same Tisdale r. Harris, 20 Pick. 9; Board- effect as Lavery v. Pursell is Meyers man v. Cutter, 128 Mass. 388; Fine V. Schemp, 67 111. 469. See, how- v. Hornsby, 2 Mo. App. 61; Bern- FOSMALITIES OF THE CoNTiBACT. n statute in this eountrj'j^" and bills and notes.^^ On the other hand it has been held that an oral agreement for the sale of an interest in an invention, before letters-patent had been obtained, might be enforced. °^ In a Massachusetts case which so held,^^ the court said : " The words of the statute have never yet been extended by any court beyond securities which are subjects of common sale and barter and which have a visible and tangible form." These words are quoted with approval in other cases. ^* They are, how- ever, not strictly accurate, for even a sale of a simple contract debt has been held by some courts to be within the statute.'*' The sale of a partner's interest in a firm is not within the statute.^® In some States choses in action have been included by the express words of the statute,*^ or the wide term " personal hardt v. Walla, 29 Mo. App. 206. Webb V. Baltimore, etc., R. K., 77 Md. 92, 26 Atl. 113, 32 Am. St. Rep. 396, follows the English de- cisions, and discredits a dictum to the contrary in Colvin v. Williams, supra. See also Rogers v. Burr, 105 Ga. 432, 31 S. E. 438, 70 Am. St. Rep. 50. Compare Meehan v. Sharp, 151 Mass. 564, 24 N. E. 507; Green V. Brookins, 23 Mich. 48, 9 Am. Rep. 74. Where a company was in process of reorganization and its stock, as yet unissued, was represented by re- organization receipts, it was said to be doubtful whether an agreement to sell the stock was within the stat- ute in Berwin v. Bolles, 183 Mass. 340, 342, 67 N. E. 323. See also Green v. Brookins, 23 Mich. 48, 9 Am. Rep. 74. " Greenwood v. Law, 55 N. J. L. 168, 26 Atl. 134, 19 L. R. A. 688. "Hudson V. Weir, 29 Ala. 294; Gooch V. Holmes, 41 Me. 523; Pray V. Mitchell, 60 Me. 430, 435; Bald- win V. Williams, 3 Met. 365; Som- erby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459. But see contra, Vaw- ter V. Griffin, 40 Ind. 593; Howe v. Jones, 57 Iowa, 130, 8 N. W. 451, 10 N. W. 299; Whittemore v. Gibbs, 24 N. H. 484. " Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459; Jones v. Rey- nolds, 120 N. Y. 213, 24 N. E. 279. See also Cook v. Sterling Electric Co., 118 Fed. Rep. 45. An assign- ment of a patent must be in writing. U. S. Rev. St., § 4898. "Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459. "Meehan v. Sharp, 151 Mass. 564, 24 N. E. 907; Vincent v. Vieths, 60 Mo. App. 9. See also Banta v. Chicago, 172 111. 204, 218, 50 N. E. 233 40 L. R. A. 611; Howe v. Jones, 57 Iowa, 130, 8 N. W. 451. ''Walker i'. Supple, 54 Ga. 178; French i'. Schoonmaker, 69 N. J. L. 6, 54 Atl. 225. "Victor V. Vieths, 60 Mo. App. 9. " See Colton v. Raymond, 114 Fed. Rep. 863, 52 C. C. A. 382; Artcher 1'. Zeh, 5 Hill, 200; Peabody v. Spey- ers, 56 N. Y. 230; Tompkins v. Sheehan, 158 X. Y. 617, 53 N. E. 502 ; Greenberg v. Davidson, 39 N. Y. Misc. Rep. 796, 81 N. Y. Suppl. 345; Nichols r. Clark, 40 N. Y. Misc. Rep. 107; Spear v. Bach, 82 Wis. 192, 52 N. W. 97. 72 TOEMATION OF THE CoNTBACT. property " is used.^® AVhere the statute is in this form there seems no ground for confining the statute to choses in action having " a visible and palpable form." But where the words of the statute are confined to goods, wares, and merchandiffC, this construction seems sound. As there is perhaps quite as muek reason why the transfer of intangible property should be supported by written evidence as the transfer of visible property the Sales Act expressly includes choses in action. § 68. Undivided interest in goods. — The sale of an undivided share of goods is within the statute.^® § 69. " Of the value of."— The English statute contained the words " for the price," and the word '' price " has generally been copied in the statutes in this country. Lord Tenterden's Act,'^ however, made use of the word " value," and it was subsequently held that the effect of this was to extend to all contracts for the sale of goods to the value of £10 and upwards the earlier statute. That is, " to substitute the word ' value ' for the word ' price.' " ^^ Though the word " price " is used in almost all the American statutes, and the word " value" in none, the narrow construction which the English court suggests that it would have given to the Statute of Erauds, had it not been for Lord Tenter- den's Act, has never been adopted in this country. Thus, con- tracts of barter are held to be within the terms of the statute.^ The importance of determining whether value is equivalent to price also arises where the contract is to sell an article for a fair price or to sell several articles for a lump price,*"^ or a contract to sell a quantity of goods as yet undetermined at a price to be de- termined by the number, weight, or measure of the goods. ^* That such bargains may be within the statute is clear from the au- »«See Mechem on Sales, § 287. 120 ilich. 611, Tt) X. W. 903; Rutan ""Dehority r. Paxson, 97 Ind. 253; r. Hinchman, 30 X. J. L. 255; ilia- Gterndt r. Conradt, 117 Wis. 15, 93 ner t. Strong, 181 N. Y. 163, 168, X. W. 804. 73 X. E. 965; supra, § 50. But see «°9 George IV, c. 14. Spinney r. Hill, 81 Minn. 316, 84 "^Harman v. Reeve, 25 L. J. C. P. N. AV. 116. 257. "Harmau r. Reeve, 25 L. J. C. P. ■"Raymond v. Colton, 104 Fed. Rep. 257. 219, 43 C. C. A. 501; Kuhns r. Gates, »• Watts v. Friend, 10 B. & C. 446; 92 Ind. 66; Dowling i\ JIcKenney, Bowman v. Corn, 8 Ind. 58; Jersey 124 Mass. 478; Gorman v. Brossard, City v. Harrison, 72 N. J. L. 185. Formalities of the Oontbact. 73 thorities cited, but a subsidiary question is, as yet, not so clearly settled. Is the value of goods, when it must be fixed in order to determine wbether the bargain is within the statute, to be re- garded as the amount the parties, or a reasonable person in the posi- tion of the parties, would have expected it to be, or is the value to be considered what it actually turns out to be, or is the con- struction which has been adopted in connection with contracts not to be performed within a year to be adopted, namely, that if the value may not exceed the statutory amount, even thoug'h it probably will and, in fact, ultimately does, the contract is not within the statute. Probably the true view is that the matter depends on the ultimate value of the goods actually sold.®® This rule, however, leads to the curious result that not only may it be uncertain at the time the contract is made whether it is within the statute, but if the contract is utterly broken by the seller at the outset, it may happen that it never can be deter- mined with certainty what the amount or value of the goods would have been if the contract had been carried out, and, there- fore, whether the contract is within the statute. § 70. " Five hundred dollars or upwards." The amount fixed by the English statute is £10 or upwards, and this amount has generally been translated in this country into $50. In Arkansas, Maine, JVIissouri, and New Jersey, it is fixed at $30 ; in Kew Hampshire, $33; in Vermont, $40; in California, Idaho, Mon- tana, and Utah, $200; and in Florida there is no limit. It should be noticed that at the time when the amount was origi- nally fixed in the English statute, £10 meant a great deal more, money than it does to-day. It was deemed vsdse in the Sales Act to name $500, amended to $2,500 in Ohio, and to $100 in Connecticut. It has been seriously questioned whether the seventeenth section of the Statute of Frauds enacts a desirable rule,'^" and as to small transactions where the custom of °= Watts V. Friend, 10 B. & C. 446. 102. It "is one of the wisest \a.vn ™ See for instance an article by in our statute book;" Wright, J., Justice Fitzjames Stephen ♦ * ♦ Shindler v. Houston, 1 N. Y. 201, 1 Ii. Q. Rev. 1. Compare Lord " this meritorious law." Kenyon, Chaplin v. Rogers, 1 East, V4 Formation" of the Conteact. reasonable business men does not prescribe a writing, it may well be that more fraud is caused than avoided by the section in ques- tion. As to transactions so considerable in amount as $500, how- ever, it seems probable that prudent business men wouLl not gen- erally leave the matter on the basis of a mere oral agreement. lu determining whether the value in a given case exceeds the specified amount, the question properly is, " What is the total value of all the goods bargained for in one sale or contract to sell 'I " The mere fact that several articles are bought and that a separate price is agreed on for each article does not necessarily prove that several contracts existed.^'^" This doctrine, though doubtless correct, has been carried to great lengths in the cases. In gen- eral, courts have been rather disposed to take doubtful cases out of the statute, rather than to force them within its terms, but here it is otherwise. In the leading case of Baldey v. Parker,"^ not only were there several articles upon which a separate price was agreed, but the articles seem to have been bought separately, one after another. The fact that a bill for the total amount was afterward ordered to be sent does not seem to alter the fact that separate sales were made, not one sale of a number of articles. The doctrine has even been carried so far as to hold where there were several successive sales by auction to one person, although each article was separately bid for and knocked down, acceptance of one article took all out of the statute.^ If goods are to be delivered in instalments, even though each instal- ment is of less value than that specified in the statute, the con- «"• Baldey v. Parker, 2 B. & C. 37 ; «' B. & C. 37. See also Weeks r. Elliott V. Thomaa, 3 M. & W. 170; Crie, 94 Me, 458, 48 All. 107, 80 Scott V. Eastern Countiea Ey. Co., Am. St. Eep. 410. 12 ^I. & W. 33; Bigg v. Whisking, >» Jenness r. Wendell, 51 X. H. 63, 14 C. B. 195; Garfield v. Paris, 96 12 Am. Rep. 48; Coffman r. Hamp- U. S. 557, 24 L. ed. 821; Weeks r. ton, 2 W. & S. 377, 37 Am. Dec. 511; Crie, 94 Me. 458, 48 Atl. 107, 80 Am. Tompkins r. Haas, 2 Barr, 74. In St. Rep. 410; Brown v. Snider, 126 the New Hampshire case the pur- Mich. 198, 85 N. W. 570; Jenness chases were not even all made on V. Wendell, 51 N. H. 63, 12 Am. the same day. But see the contrary Rep. 48; Allard v. Greaaert, 61 N. Y. and sounder decisions, Emerson v. 1 ; Tompkins v. Sheehan, 158 N. Y. Heelis, 2 Taunt. 38 ; Couston v. Chap- 617, 53 N. E. 502. man, L. R. 2 H. L. Sc. 250, 252. FoEKALITIES OF THE CoNTBACT. 75 tract is within the statute if it is in fact a single contract, and if the total value of all the instalments exceeds the prescribed amount.^* Where, however, goods belonging to several persons are sold, even though one bargain only is intended, there must be several sales in order to transfer title to the goods to a purchaser and the property of each seller must be considered separately.''*' § 71. " Shall not be enforceable by action." — The correspond- ing words of the original English statute are, "shall not be al- lowed to be good," but the draughtsman of the English Sales of Goods Act changed the words to those at the heading of this section, and these words have been in turn adopted in the Sales Act. The meaning of the 'later expression is sup- posed to be the same as that which the courts had given the earlier expression. In considering what is the nature of a contract to sell, or a sale, which is valid at common law but as to which there has been no compliance with the statute, and how far such a transaction has any validity, it is desirable to bear in mind the words of the statute that may be in question; for in this country varying language has been used in the different statutes and the meaning does not seem necessarily identical. Maryland alone, of the States, seems to have adopted the English statute as such, as part of her juris- prudence," but the statutes of other States contain words which are either the same, or must be regarded as equivalent. The words, " shall be good," are contained in the statutes of Con- necticut,^^ Florida,''^ Massachusetts,''* Mississippi,^* South Caro- lina,'® Washington.'''' Several States enact that only such a bar- gain as fulfills the terms of the statute " is valid " or that other- wise it " is invalid." Such States are California,''* Idaho,''* "Marsh v. Hyde, 3 Gray, 331; Md. 92, 26 Atl. 113, 39 Am. St. Eep. Standard Wall Paper Co. v. Towns, 396; Corbett v. Wolford, 84 Md. 426, 72 N. H. 324, 56 Atl. 744. 35 Atl. 1088. ™ Tompkins v. Sheehan, 158 N. Y. "Gen. St. (1902), § 1090. 617, 53 N. E. 502. "Rev. St. (1892), § 1996. "See Colvin v. Williams, 3 H. & J. "Rev. Laws (1902), o. 74, § 5. 38, 5 Am. Dee. 417 ; Newman v. Mor- " Code, § 4229. Tis, 4 H. & McH. 421 ; Rentch v. Long, " Code ( 1902 ) , § 2653. 27 Md. 188; Sentman v. Gamble, 69 " Ballinger's Codes (1897), § 4577. Md. 293, 13 At!. 58, 14 Atl. 673; '"Civil Code (1903), § 1739. Webb V. Baltimore, etc., R. R. Co., 77 "Civil Code (1901), § 2739. 76 Formation of the Contbact. Indiana/" Maine,*^^ Michigan,^^ Montana;^' 'New Hampshire,^ North Dakota,®^ South Dakota,^^ Vermont.^^ In Arkansas the words are, " shall be binding on the parties." ^^ In Georgia the words are, '" binding on the promisor." ^" In Iowa the statute reads, " no evidence is competent unless it be in writing." If there has been neither part delivery nor part payment, these vari- ous expressions may be assumed to be identical in legal effect with the expressions used in the English statute, but the same assump- tion cannot safely be made in regard to the words '' shall be void," or '■ are void," which are contained in the statutes of a number of the States, namely: Colorado,®" Minnesota,^'- Xe- braska,"^ aSTevada,"^ Xew Jersey,^* Xew York,®^ Oregon,"'^ Utah," "Wisconsin,'"* AA'yoming."" Under the English statute it has been held that only the enforcibility, not the validity, of a bargain depends upon the satisfaction of the statute. It is even said that the only effect of the statute is to require certain evidence in order to prove the bargain. This view has been given currency by the learned author of the leading treatise on the Statute of Frauds,^ and has been expressed in the statute of Iowa referred to above. It has also received the sanction of high judicial authority.^ Xevertheless it seems that the eifect of the statute is more far- reaching than a rule of evidence. In the first place a memo- randum made after the beginning of the action will not satisfy •"Burns Annot. St. (1901), § CC35. °« Sanborn & Berryman St. (189S), "Rev. St. (1903), c. 113, § 4. § 2308. "Comp. LaAvs (1897), § 9516. »= Rev. St. (1899), § 29.54. " Civil Code, § 2340. ^ Browne on the Statute of Fra-uds. *'Pub. St., c. 215, § 3. ^Lord Blackburn in Maddison v. "Rev. St. (1895), § 3958. Alderson, 8 App. Cas. 467, at p. 488: ™ Annot. St. ( 1 901 ) , § 4804. " I tliink it is now finally settled that "Stat. (1894), § 122,3. the true construction of the Statute ™Dig. of St. (1894), § 3470. of Frauds, both the 4th and 17th ''Code (1S95), § 2693. sections, is not to render the con- "» Mills' St. (l,S!ll), § 2025. tracts under them void, still less "Rev. Laws (1905), § 3484. illegal, but is to render the kind of °^ Comp. St. (1899), § 3183. evidence required indispensable when °=Gen. St. (1885), § 2631. it is sought to enforce the contract." "Gen. St. (1895), p. 1603, § 6. Similar expressions are used by the ==Birdseye's Rev. St, (1901), p, 2634. court in Townsend r. Hargraves, 118 °° Hill's Annot. Laws (1892), § 785. Mass. 325; Crane r. Powell, 139 N. Y. "Rev. St. (1898), § 2469. 379, 34 N. E. 911. FOEMALITIES OP THE CoNTEACT. 17 the statute.^ Again, it is generally held that the statute must be aifirniatively pleaded.* If only a rule of evidence were involved this would be unnecessary. To be sure the requirement of a special plea is by no means universal; for in England at common law, and still in many jurisdictions, the defendant may take advantage of the statute under the general issue. ^ The words of the English statute also seem to express, if naturally con- strued, more than a rule of evidence. For this reason it seems better to call the rule of the statute one of remedial procedure, somewhat analogous to the rule of the Statute of Limitations, rather than a mere rule of evidence.® The validity of an unen- foreible contract, or sale, may be important in several kinds of cases. As between the parties themselves the effect of a trans- "Bill V. Bament, 9 M. & W. 36; Lucas V. Dixon, 22 Q. B. D. 357; Bird V. Munroe, 66 Me. 337, 347, 22 Am. Rep. 571. See alao Purdon Co. i;. Western Union Tel. Co., 153 Fed. Eep. 327. A contrary decision, under tlie section of the statute relating to land, is Remington v. Linthieum, 14 Pet. 84, 10 L. E. 364. See also Cash r. Clark, 61 Mo. App. 636; and infra, § 117. « Carter v. Fischer, 127 Ala. 52, 28 So. 376; Wolfskin v. Douglas (Cal.), 59 Pac. 987. But see Fecney v. Howard, 79 Cal. 525, 532, 21 Pac. 984, 4 L. R. A. 826, 12 Am. St. Rep. 162; Taliaferro v. Smiley, 112 Ga. 62, 37 S. E. 106; Koenig v. Dohm, 209 111. 468, 476, 70 N. E. 1061; De Montague v. Bacharach, 187 Mass. 128, 132, 72 isr. E. 938; Fee v. Sharkey, 59 N. J. Eq. 284, 44 Atl. 673; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911; Agan v. Barry, 66 N. Y. App. Div. 101 ; Hemmings v. Doss, 125 N. C. 400, 34 S. E. 511; Gladwell V. Hume, 18 Ohio C. C. 845 (but see Birchell v. Neaster, 36 Ohio St. 331) ; Smith V. Ruohs (Tenn. Ch. App.), 54 S. W. 161; Citty v. Manufacturing Co., 93 Tenn. 276, 24 S. W. 121, 42 Am. St. Rep. 919; Hart v. Garcia (Tex. Civ. App.), 63 S. W. 921; Abba V. Smyth, 21 Utah, 109, 59 Pac. 756. ' Buttermere v. Hayes, 5 M. & W. 456; Eastwood v. Kenyon, 11 A. & E. 438; Dunphy v. Ryan, 116 U. S. 491, 6 S. Ct. 486, 29 L. ed. 703 ; JIcDonald V. Yungbluth, 46 Fed. Rep. 836; Buhl V. Stephens, 84 Fed. Rep. 922 ; Feeney V. Howard, 79 Cal. 525, 21 Pac. 984, 4 L. R. A. 826, 12 Am. St. Eep. 162; Salomon v. McRae, 9 Colo. App. 23; Thompson v. Frakes, 112 Iowa, 585, 84 N. W. 703; Morgan v. Wickliffe, 22 Ky. L. Rep. 1648, 61 S. W. 13; Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709; Morgart v. Smouse, 103 Md. 463, 63 Atl. 1070, 115 Am. St. Eep. 367 ; Bean v. Lamprey, 82 Minn. 320, 84 N. W. 1016; Neuvirth v. Engler, 83 Mo. App. 420; Young v. Ledford, 99 Mo. App. 565, 568, 74 S. W. 443; Hillhouse v. Jennings, 60 S. C. 373, 38 S. E. 599; Williams- Hayward Co. v. Brooks, 9 Wyo. 424, 64 Pac. 342. ' This view is elaborated in an able article in 9 Am. L. Rev. 434. The article is not signed but was, in fact, written by William C. Loring, now a justice of the Supreme Judicial Court of Massachusetts. The tlieory is substantially stated also by Willes, . J., in Gibson v. Holland, L. R. 1 C. P. V8 FoEMATION OF THE CoNTEACT. action sufficient at common law to pass the title to property but where the statute has not been satisfied, was thus expressed in a re- cent English case.' " The contract being good, all the legal conse- quences of a contract follow ; so that, if the contract is for sale of specified goods, the property in the goods passes to the buyer. It may be asked, What hajDpens if the buyer, after making the pur- chase, refuses to fulfill any of the statutory conditions which alone will make the contract enforcible against him? The property in the goods has passed to him, and it may be that he has received the goods themselves, yet he cannot be sued for the price. My answer is that the seller may call on the buyer to pay for the goods, and, if he fails to comply, the seller may treat the contract as rescinded. The eifect of such rescission would be to revest the property in the seller and to entitle him to resume the possession." It is clear, however, that the seller must have a right to repudiate if the sale is not enforcible against him, and if he can do this, he must also be able to resell them and give the second purchaser a good title. This was so held in a recent Missouri case.® 1, in language quoted and approved by Peters, J., in Bird r. ^lunroe, 66 Me. 337, 347, 22 Am. Rep. 571: " The courts have considered the intention of the Legislature to be of a mixed character; to prevent persons from having actions brought against them so long as no written evidence, was existing when the action was insti- tuted." 'Taylor i. Great Eastern Ry. Co., [1901] 1 K. B. 774, 779. ' Shelton r. Thompson, 96 Mo. App. 327, 70 S. W. 256. The court said: " If the acts of the parties constituted a sale at law, the transaction was not void but only voidable at the elec- tion of the party to be charged. Ault- man v. Booth, 95 Mo. 383, 8 S. W. 742; Maybee !'. Moore, 90 Mo. 340, 2 S. W. 471. And it may alpo be said that as the Statute of Frauds affects only the remedy of the party sought to be charged, its benefits cannot be claimed by one who is not a party to the contract and is not sought to be charged thereby. St. Louis Railway r. Clark, 121 Mo. 169, 25 S. W. 192, 906. But we hold that the defend- ants are not within the above rule, for the reason that their vendor. Bain, voided the contract in the first instance by refusing to let plaintiffs have the hogs in dispute. It would be illogical to hold that after a vendor had repudiated an oral con- trait like the one in question, he could not thereafter sell the goods and give good title. That ia to say, that thereafter he must keep the goods because a purchaser could not be found, for the reason that they could be taken from him by the orig- inal vendee, which would destroy their character as articles of mer- chandise. But it is plain, that when the vendor voids a sale under said statute and retains the goods, his title is as if no such sale had ever been made, and he can resell and give I Formalities of the Contkact. 79 § 72. Third persons cannot take advantage of the statute. — If the views that have been stated in the previous section are sound, as is believed, it follows that a contract or sale within the statute is valid except that it cannot he enforced against either party unless the statute has been satisfied as to him. A third party should not be able to assert the invalidity of such transactions. In general the authorities support this view. Therefore, in an action for preventing performance of a contract between a third person and the plaintiff, the defense cannot set up that the contract was oral.® Again, if insurance is made by a buyer upon property which he has bought by oral sale, and the statute has not been in any way satisfied, the insurance company cannot set up that the insurer had no insurable interest in the property. ■'° It should also be true that the buyer, in the case of such a sale, should be able to recover against any one who has injured the property. Much of the authority seems, however, without good reason, to be contrary. The buyer has not been allowed to sue a carrier for goods injured in transit when title had passed at common law, as good a title as his own to the pur- Ind. 531 ; Dixon v. Dnke, 85 Ind. 434; chaser, who can, at a suit by the first Wright !'. Jones, 105 Ind. 17, 4 N. E. vendee for the same goods, plead the 281; Savage v. Lee, 101 Ind. 515, 8 action of the vendor, as a bar to such Am. & Eng. Enc. Law, 659, and cases suit." cited. It concerns the remedy alone, ' Jackson v. Stanfield, 137 Ind. 592, and the modern law is well settled 36 N. B. 345, 37 N. E. 14, 23 L. R. A. that, in the absence of a statutory 588. The court said : " If this be provision to the contrary, the effect true, it is no concern of the appe\leea. of the statute is not to render the Parties to contracts and their privies agreement void, but simply to pre- can alone take advantage of the fact vent its direct enforcement by the that a contract is invalid under the parties, and to refuse damages for its Statute of Frauds. Many forms of breach. 8 Am. & Eng. Enc. Law, 658, expression by this and other courts 659, and cases cited." illustrate the doctrine that a third '° Amsinck v. American Ins. Co., person cannot make the Statute of 129 Mass. 185 ; Wainer v. Milford Frauds available to overthrow » Mutual F. I. Co., 153 Mass. 335, 26 transaction between other persons; N. E. 877, 11 L. R. A. 598. Compare that the defense of this statute is Stockdale v. Dunlop, 6 M. & W. 224, purely a personal one, and cannot be per Parke, B. ; Felthouse v. Bindley, made by strangers. Burrow v. Rail- 11 C. B. (N. S.) 869, per Willes, J.; road Co., 107 Ind. 432, 8 N. E. 167; Pitney v. Glens Falls Ins. Co., 65 Bodkin v. Merit, 102 Ind. 293, 1 N. E. N. Y. 6. 625; Cool u. Peters Box, etc., Co., 87 80 Formation of the Contract. but the statute had not been satisfied.''^ It has been held in Florida that a buyer could not maintain an action against a third jjerson for detaining property which the buyer had bought, the statute not having been satisfied.''" Other decisions, however, are opposed to this in principle.''^ Further, though in Minnesota " Morgan r. Sykea, stated in 3 Q. B. 486; O'Neill v. New York, etc., R. R. Co., 60 N. y. 138. It should be noticed, however, that the New York statute says that such a transaction shall be " void." " Summerall v. Thorns, 3 Fla. 298. " Garcia r. X'nited States, 37 Ct. CI. 243; Norton v. Simonds, 124 ilass. 19. In this case the plaintiff was a purchaser from one who had acquired title by a sale in which the statute was not satisfied. The plaintiff was, nevertheless, allowed replevin against a third person. In Townsend r. Har- graves, 118 ifass. 325, 333, Colt, J., said: "In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it. If a niemorandvim or proof of any of the alternative requirements jieculiar to the seventeenth section be furni.slied ; if acceptance and actual receipt of part be shown; then the oral contract, i^s proved by the other evidence, is estalilished with all the consequences which the common law attaches to it. If it be a completed contract according to common-law rules, then, as between the parties at least, the property vests in the pur- c]ia-er, and a right to the price in the seller, as soon as it is made, sub- ject only to the seller's lien and right of stoppage in transitu, ilany points decided in the modern casps support by the strongest implication the con- struction here given. Thus, if one party has signed the memorandum, the contract can be enforced against him, though not against the other — showing that the promise of the other is not wholly void, because it affords a good and valid consideration to sup- port the promise which by reason of- the memorandum may be enforced. Eeuss V. Picksley, L. R. 1 Ex. 342. The memorandum is sufficient if it be onl}' a letter written by the party to his o\vn agent ; or an entry or record in his own books; or even if it con- tain an express repudiation of the contract. And this because it is evi- dence of, but does not go to make the contract. Gibson v. Holland, L. R. 1 C. P. 1 ; Buxton r. Rust, L. R. 7 Ex_ 1, 279 ; Allen c. Bennet, 3 Taunt. 169 ; Tufts r. Plymouth ilining Co., 14 Allen, 407 ; Argus Co. r. Albany, 55 N. Y. 495. A creditor, receiving pay- ment from his debtor, without any direction as to its application, may apply it to a debt upon which no action can be maintained under the statute. Hayues v. Nice, 100 Mass. 327, 1 Am. Rep. 109. The contract ia treated as a subsisting valid contract when it comes in question between other parties for purposes other than e, recovery upon it. Hence the statute cannot be used to charge a trustee, who may set up against his debt to the principal defendant a verbal piomise within the statute to pay the defendant's debt to another for a greater amount. Cahill v. Bigelow, 18 Pick. 369. And a guarantor may recover of his principal a. debt paid upon an unwritten guaranty. Beal v. Brown, 13 Allen, 114. On the ground that the statute affects the remedy and not the validity of the contract, it has been held that an oral con- tract, good by the law of the place FoEMAUTIES OF THE CoNTEACT. 81 and ISTew York it has been held that a buyer under such a sale cannot maintain an action against an officer who attaches the goods as the property of the seller," in opposition to these cases are decisions in Maine and jSTew Jersey, allowing the action against the officer.^^ Under a Federal statute al- lowing compensation to loyal o-miers of property captured or destroyed during the Civil War, the Supreme Court of the United States had to consider the question whether the buyer of cotton, tinder a sale in which the statute had not been satisfied, could be regarded as owner, and the court held that he could not.-'" The court cites no authorities in support of this statement, however ; and a later .decision by the same court, involving almost precisely the same question, expressed a con- trary view without citing the earlier case.-'^ Support for the view where made, will not be enforced in the courts of a, country where the statute prevails. Leroux i;. Brown, 12 C. B. 801. The defendant may always waive its protection, and the court will not interpose the defense. Middlesex Co. v. Osgood, 4 Gray, 447. And, except that the statute provides that no -action shall be brought, there would be no good reason to hold that B, memorandum signed, or an act of acceptance proved, at any time before the trial, would not be sufficient. Bill V. Bament, 9 J\I. & W. 36; Tisdale v. Harris, 20 Pick. 9. In a recent case in the Queen's Bench, a, memorandum in writing made by the defendant, after the goods had been delivered to a carrier and been totally lost at sea while in his hands, was held sufficient to take the case out of the statute, and no notice is taken of the fact that the goods were not in existence when the memorandum was furnished. Leather Cloth Co. r. Hieronimus, T,. R. 10 Q. B. 140." "Waite V. McKelvy, 71 Minn. 167, Y3 X. W. 727; Ely v. Ormsby, 12 Barb. 570. See also Winner v. Wil- liams, 62 Mich. 363, 28 N. W. 904. Here also it should be noticed that both the Minnesota and the New York statute use the word " void." " Cowan V. Adams, 1 Fairf. 374, 25 Am. Dec. 242; Sherron v. Humphreys, 2 Green (N. J. L.), 217. "Mahan v. United States, 16 Wall. 143, 21 L. ed. 307. Miller, J., de- livering the opinion of the court, said (p. 147) : "To hold that an agree- ment which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to the claimant would be to overrule the uniform con- struction of this or a similar clause in all Statutes of Frauds by all ths court^ which have construed^ them." " Briggs !'. United States, 143 U. S. 346, 12 S. Ct. 391, 36 L. ed. 180. The court there said : " There was no creditor or purchaser who could ques- tion the transfer of title to the vendee. The government stood in no such relation and could raise no such objection. It had no pre-existing de- mand or equity against the property. All the rights of the government re- sulted from capture." 82 FOEMATION OF THE CONTRACT. that the contract is valid except as concerning enforcibility be- tween the parties Avill also be found in the cases under the section of the statute relating to land. These cannot be examined here but should be referred to.^^ How far the use of the word " void " in the statute should be held to require a difference in construc- tion is a question upon which authority is lacking. Such statutes were probably not intended to vary the meaning of the English statute which forms the original basis of all of them, and it may be that the word " void " should be given the meaning of " void- able," at the election of the other party.-'^ § 73. Satisfaction of the statute. — The statute specifies three waj^s in which contracts or sales within its terms may be made binding: (1) Acceptance of the whole or part of the goods- (or clioses in action) sold, and actual receipt of the same; (2) payment of earnest money or a portion of the price; (3) The giv- ing of a memorandum signed by the party to be charged. There has been elaborate judicial construction of each of these require- ments, all of which are found with hardly an exception in the American statutes.^" These statutory requirements are obviously additional to what the common law requires; although the same circumstances may sometimes indicate the formation of a bargain at common law and a satisfaction of the statute by the statutory re- quirements. In order to recover, therefore, a plaintiff must show a good bargain, whether contract or sale, at common law, and "See Browne on the Statute of Annot. St. (1901) § CC35. In Iowa Frauds, c. VlII, 29 Am. & Eng. the corresponding requirement is that Encyc. 807. part of the goods be " delivered." "In Crane v. Powell, 139 X. Y. 379, Code (1S!17), § 4625. As to the con- 384, 34 N. E. 911, the court said, struction of this language, see Bul- speaking of the statute: " It simply lock r. Tschergi, 13 Fed. Kep. 345; requires that certain agreements must Legget & :Meyer Co. r. Collier, 89 be proved by writing. It introduced Iowa, 144, 56 N. W. 417; Dierson v. a new rule of evidence in certain Petersmeyer, 109 Iowa, 233, 80 N. W. cases without condemning as illegal 389. The first of these cases held any contract that was legal before." delivery to a, carrier for the buyer The court here does not seem to dis- satisfied the statute. The latter de- tinguish the construction to be given cision in the same State held the con- the New York statute from that trary. ilany American statutes make given the English statute. no reference to earnest, but any sum =°In Indiana the statute uses of money paid to bind a bargain of simply the word "receive" without sale would in fact always be a part reference to acceptance. Burns' payment of the price. Formalities of the Conteaot. 83 satisfaction of the statute in. one of the three specified ■■ways. Until this has been done, the defendant may withdraw without liability.^^ The requirement of a memorandum is obviously suitable either for a contract to sell or a sale. The other two modes of satisfac- tion seem more naturally to apply to sales than to executory con- tracts. It is clear, however, that earnest money, or a portion of the price, may be paid by the buyer before the time when it is agreed that the property shall pass; and if this is done the ex- ecutory contract must become binding. Even acceptance and actual receipt of the goods may take place before title has passed, though the case is so unusual as to make it appear strange. The seller may, however, deliver to the buyer the goods to which the contract relates and the buyer may accept them though it is agreed that the property shall not pass until some time later. The ordinary case of a conditional sale is an instance of the sort. Such a bargain, though oral, is enforcible if the buyer accepts and receives the goods, though he does not get complete titl^ as yet.^^ Also the seller may deliver part of the goods and transfer the property in these, while the contract as to the rest of the goods still remains executory.^* Satisfaction of the statute by ac- ceptance and actual receipt of part of the goods^* or by part payment makes the entire bargain of the parties enforcible, even though the bargain contains as a part of it another agreement to sell besides that which has been partly performed. Thus if the seller of goods agree as part of the original bargain to take them back if desired, this agreement of repurchase becomes enforcible by the acceptance and receipt or payment by the buyer.^° =1 Smith V. Hudson, 6 B. & S. 431; =» Williams v. Burgess, 10 A. & E. Dierson v. Petersmeyer, 109 Iowa, 499; Gurwell v. Morris (Cal. App.), 233, 80 N. W. 389; Schwartz v. 83 Pac. 578; Hilliard v. Weeks, 173 Church of Holy Cross, 60 Minn. 183, Mass. 304, 53 N. E. 818; Fremont 62 N. W. 266. See § 82. Carriage Co. v. Thomsen, 65 Neb. "'Pinkham v. Mattox, 53 N. H. 370, 91 N. W. 376; Johnston i'. 600. Trask, 116 N. Y. 136, 22 N. E. 377, 5 =" Garfield v. Paris, 96 U. S. 557, L. E. A. 630, 15 Am. St. Eep. 394; 562, 24 L. ed. 821; Rickey v. Ten- Fay i: Wheeler, 44 Vt. 292. So if broeck, 63 Mo. 563. that portion of a contract which is ^ By the words of the statute it is within the statute is reduced to writ- Bufficient if part of the goods are ao- ing the memorandum makes the whole cepted and actually received. See enforcible. Agnew v. Baldwin, infra, § 94. Wis. , 116 N. W. 641. 84 Formation of the Co^'teact. § 74. Acceptance and receipt is not equivalent to delivery. — In the early linglisii cases, involving the question of acceptance and actual receipt of, the word " delivery " is frequently used as if that word were the equivalent of acceptance and actual receipt.^' The word " acceptance," likewise, in some cases is used alone as if in itself it included the whole requirement of the statute. ^^ One of the services to clear thinking in the law of sales rendered by Blackburn in his book on the " Contract of Sale," was making it clear that acceptance and actual receipt were imposed by the statute as a double requirement. "As there may be an actual receipt without any acceptance, so there may be an acceptance without any receipt." "^ § 75. Acceptance. — The meaning of acceptance, under the statute, seems to be an assent on the part of the buyer to take specified goods as owner, though as has been shown it need not be an assent to be. owner at oncc."^ It is, however, necessary that goods should be identified in order that there may be an ac- ceptance, and if they are still part of a larger mass there can be no at-feptance.^" It has also been said that if the transaction con- templates that the seller shall do something further to put the goods in deliverable condition, there can be no acceptance.^^ This statement, however, should perhaps be qualified. It is of course po>>ible if the parties so intend, though the presumed intention ^"Chaplin r. Eogers, 1 East, 192; aometliing indicating that he has ao- Elmore v. Stone, 1 Taunt. 45S. See cepted part of the goods and taken to Scaili' I. Kcoves, 2 Esp. 598; Xor- them as owner," by Lord Campbell, in man r. Phillips, U :\I. & W. 277; Parker r. Wallis, 5 E. &; B. 21, 26. Vincent v. Germond, 11 Johns. 283. So in Eohde r. Thwaites, 6 B. & C. » Howe «. Palmer, 3 B. & Aid. 321; 388, 393, Holroyd, J., said: "The Tempest v. Fitzgerald, 3 B. & Aid. sugars agreed to be sold being part 680; Bill v. Bament, :\I. & W. 36 of a larger parcel, the vendors were (by Lord Abinger) ; Terney v. Doten, to select twenty hogsheads for the 70 C'al. 399, 11 Pac. 743; Washington vendee. That selection was made by Ice Co. r. Web.ster, 62 Jle. 341, 360, the plaintiffs, and they notified it to 16 Am. Rep. 462. the defendant, and the latter then ^Blackburn on Sales (1st ed.), 22. promised to take them away. That See also Kemensky v. Chapin, 193 is equivalent to an actual acceptance TMa.'Js. 500, 70 N. E. 7S1; Cross !'. of the sixteen hogsheads by the de- O'Donnell, 44 X. Y. 661, 664, 4 Am. fendant." \Yhere the action of the Rep. 721; Grant v. :\Tilam, Okla. buyer is ambiguous and may or may , 95 Pac. 424, and decisions in fol- not indicate acceptance, his intent is lowing section. material. Jarrell [•. Young, 105 :\Id. " The buyer '•' must have done 280, 66 Atl. 50. FoBMALITIES OF THE CONTRACT. 85 is othenvise, for title to pass at common law while the seller still has something to do upon the goods. It would seem equally pos- sible for him to assent to those goods being the goods to which the, bargain relates within the Statute of Frauds, and to accept them as such, the seller agreeing to do further work upon them. It has been decided at least that there may be acceptance, though the goods must be counted, weighed, or measured to fix the price.^^ If goods are submitted to the examination of the spiici^to deter-' mine whether they are the goods he has agreed to take, it seems obvious that there is as yet no acceptance except upon the con- struction of the statute given by the recent English decisions, to which reference will be made hereafter.^^" Mere delivery is not sufficient,^^ and " under the statute the buyer is at liberty to refuse, even if his action could be found to have been arbitrary and wholly unreasonable." ^* § 76. Time of acceptance. — It is clearly settled that acceptance, as well as receipt of the goods, may be subsequent to the common- law bargain to which the statute is applicable, whether a contract to sell or a sale.^^ A more difficult question relates to the rule covering the relative time of acceptance and receipt; that receipt '"Terney v. Doten, 70 Cal. 399, 11 472; Remick v. Sandford, 120 Mags. Pac. 743; Knight v. Mann^ 118 Mass. 309; Keraensky v. Chapin, 193 Mass. 143; Atherton l-. Newhall, 123 Mass. 500, 79 N. E. 781; Mechanical Boiler 141, 25 Am. Eep. 47; Rodgers v. Co. o. Kellner, 62 N. J. L. 544, 43 Phillips, 40 N. Y. 519. Atl. 599; Stone v. BrowTiing, 51 N. Y. ''Hinchman v. Lincoln, 124 U. S. 211, 68 N. Y. 598; Gibbs v. Benjamin, 38, 51, 8 S. Ct. 369, 31 L. ed. 337; 45 Vt. 124; Bacon v. Eecles, 43 Wis. Brunswick Grocery Co. v. Lamar, 227. 116 Ga. 1, 42 S. E. 366; Oilman v. ^'Kemensky v. Chapin, 193 Mass. Hill, 36 N. H. 311; Outwater v. 500, 79 N. E. 781. Dodge, 7 Cow. 85 ; Cooke v. Millard, ^ Buckingham v. Osborne, 44 Conn. 65 N. Y. 352, 22 Am. Rep. 619; Wegg 133; Coffin v. Bradbury, 3 Ida. 770, 17. Drake, 16 U. C. Q. B. 252. 35 Pac. 715, 95 Am. St. Rep. 37; «= Daniel v. Hannah, 106 Ga. 91, 31 Davis i;. Moore, 13 Me. 424; Bush v. S. E. 7.34; Maeomber v. Parker, 13 Holmes, 53 Me. 417; Marsh v. Hyde, Pick. 175; Cunningham v. Ashbrook, 3 Gray, 331; McCarthy v. Nash, 14 20 Mo. 553. In the latter two cases Minn. 127; Ortloff v. Klitzke, 43 tlie goods were delivered to the buyer Minn. 154, 44 N. W. 1085; Field i\ while still unweighed. In Daniel v. Runk, 2 Zab. 525 ; McKnight v. Dun- Hannah, they were left at an agreed lop, 5 N. Y. 537, 55 Am. Dec. 370; public place. Jackson !'. Tupper, 101 N. Y. 515, 5 ==' See infra, § 80. N. E. 65 ; Danforth v. Walker, 40 Vt. =^ Nicholson v. Bower, 1 E. & E. 257; Cotterill v. Stevens, 10 Wis. 172; Jamison r. Simon, 68 Cal. 17, 8 422. Pac. 502; Hewes v. Jordan, 39 Md. 86 EoBMATIOX OF THE CoNTKACT. may precede acceptance there seems no doubt. Thus: Where goods are sent in accordance with the contract and the g c il &r takes , them into his possession, this will constitute receipt, and when he thereafter examines them and assents to their quality, this will constitute acceptance.^® It is equally true that acceptance may precede the receipt. This was finally decided in England by the case of Cusack v. Robinson,^^ and the decision has been followed in this country,^^ though expressions may be found which seem, literally interpreted, to indicate a contrary understanding.^* Thi^ Sales Act, therefore, follows the existing law in declaring that acceptance may be either before or after delivery of the goods.*" If, therefore, the goods in regard to which the parties are dealing are identified, the agreement of the buyer to buy these goods is in itself an acceptance of them.*-' ™ Knight !'. Matin, 118 Mass. 143. See also cases cited supra, note 33. =' 1 B. & S. 299. This case over- ruled certain expressions in Saunders V. Topp, 4 Ex. 390, to the effect that it is necessary that the acceptance should be subsequent to or contem- poraneous with the receipt; but con- trary expressions are to_ be found in Morton v . Tibbett, 1 5 q! B. 423. In Cusack V. kob'insori, Blackburn, J., quflted these and summarized the matter as follows : " The intention of the Legislature seems to have been that the contract should not be good unless partially executed; and it is partially executed if, after the vendee has finally .agreed on the specific arti- cles which he is to take under the contract, the vendor by the vendee's directions parts with the possession, and puts them under the control of the vendee, so as to put a complete end to all the rights of the unpaid vendor as such. We think, therefore, that there is nothing in the nature of the enactment to imply an inten- tion, which the Legislature has cer- tainly not in terms expressed, that an acceptance prior to the receipt will not suffice." "Ex parte Safford, 2 Low. 563; Hewes v. Jordan, 39 Md. 472, 17 Am. Rep. 573; Ullman v. Barnard, 7 Gray, 554; Cross f. O'Donnell, 44 X. Y. 661, 4 Am. Rep. 721; Bristol v. Mente, 79 N. Y. App. Div. 67, 74, 80 N. Y. Suppl. 52 ; affirmed, without opinion, 178 X. Y. 599, 70 X. E. 1096. " See .Jones r. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533 ; Black v. Del- bridge Co., 90 Mich. 56, 51 X. W. 269; Shepherd v. Pressey, 32 X. H. 40. In the case first cited, the court said: "There can be no acceptance under the statute without delivery by the seller," and this statement was quoted with approval in Richardaon V. Smith, 101 Md. 15, 20, 60 Atl. 612, 70 L. R. A. 321, 109 Am. St. Rep. 552. Too much importance should not be laid on such expressions, however. This is evident from the fact that, in spite of these remarks by the ilary- land court, that very court has fol- lowed Cusack V. Robinson, when the question was actually involved. See Hewes -u. Jordan, supra, note 38. "Section 4 (3). " See cases referred to in this sec- tion, supra.^ FoEMALITIES OF THE CoNTEACT. 87 § 77. Acceptance by dealing with the goods as owner. — Though acceptance will ordinarily take place after the buyer has suffi- ciently examined the goods to understand their nature and quality, it is obviously possible for a buyer to accept goods without making an examination. If he assents to take specified goods as his, there seems no reason to doubt that he has accepted them within the terms of the statute. If, therefore, he does any act in relation to specified goods, which necessarily involves the conclusion that he has taken them as owner, there is an acceptance. Such an act is a resale of the gQods by the buyer.*^ So mortgaging the goods implies acceptance;*^ or assenting to the depos it of goods in a warehouse for the buyer andTpaymg part of the price,** or remov- ing, or otherwise dealing with property as owner. *^ Even deten- tion of the goods for an unreasonable time may indicate accept- ance.*^ In the cases that have just been put it will be observed that the buyer does not express satisfaction with the goods, he merely assumes ownership of them. If he does this it may be that in " The leading case upon thia point_ J9 MortoiTf. 'i'ibbett, 15 Q. H. 4ii8"^ Lord Campbell lolloping the earlier case of Blenkinsop v. Clayton, 7 Tannt. 597, held the resale an ac- ceptance, saying: "He exercised an act of ownership over it by reselling it at a profit, and altering its destina- tion by sending it to another wharf, there to be delivered to his vendee. The wheat was then constructively in his own possession; and could such a resale and order take place without lis having accepted and received the commodity? Does it lie in his mouth to say that he has not accepted that which he has resold and sent on to be delivered to another? At any rate is not this evidence from which such an acceptance and receipt may be in- ferred by the jury ? " To the same eflfeet are Marshall r. Ferguson, 23 Cal. 65; Phillips v. Ocmulgee Mills, 55 Ga. 633; Taylor f. Mueller, 30 Minn. 343, 346, 15 N. W. 413, 44 Am. Eep. 199; Gray c. Davis, 10 N. Y. 285; Roman v. Bressler, 32 Neb. 240, 49 N. W. 36S; Hill v. McDonald, 17 Wis. 97. But see .Tones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533. " Wyler r. Rothschild, 53 Neb. 566, 74 N. W. 41. " Shaw Lumber Co. v. Manville, 4 Ida. 369, 39 Pac. 559. " Currie v. Anderson, 2 E. & E. 592 ; Corbett v. Wolford, 84 Md. 426, 35 Atl. 1088; Edwards v. Brown, 98 Me. 165, 56 Atl. 654. " Coleman v. Gibson, 1 M. & R. 168; Norman !'. Phillips, 14 M. & W. 277; Parker i'. Wallace, 5 E. & B. 21; Bushel f. Wheeler, 15 Q. B. 442; Treadwell v. Reynolds, 39 Conn. 31; Godkin v. Weber, Mich. , 114 N. W. 924; Schwartz v. Church of Holy Cross, 60 Minn. 183, 62 N. W. 266; Small v. Stevens, 65 N. H. 209, 18 Atl. 196; Standard Wall Paper Co. v. Towns, 72 N. H. 324, 56 Atl. 744; Chambers v. Lancaster, 160 N. Y. 342, 54 N. E. 707 ; Lamar v. Rich- mond Cooperative Institution, 8 Utah, 305, 31 Pac. 397; Spencer v. Hale, 30 Vt. 314, 73 Am. Dec. 309. Compare Hinchman v. Lincoln, 124 U. S. 38, 52, 31 L. ed. 337. 88 FOEMATION OF THE CONTRACT. spite of objections and even refusal to accept there may, never- theless, be an acceptance.*^ Acts of any sort which not only indi- cate an assumption of ownership, but also indicate the buyer's satisfaction with the particular goods furnished him, after exami- nation, even more clearly indicate acceptance.*^ In connection with the question of acceptance under the Statute of Frauds by assuming ownership, cases involving acceptance as an indication of transfer of the property apart from the statute may be examined.*" § 78. Right of objection. — Much discussion has arisen in re- gard to the question whether acceptance can take place before the purchaser has lost his right co object. In several cases statements have been made that this is impossible.^" These dicta were ex- amined in Morton v. Tibbett'^ and held to be unfounded. The conclusion of this decision seems to follow inevitably from the decisions in the previous section and from a consideration of the matter upon principle. If a horse is sold with a warranty and the buyer takes him home and uses him, and pays the price, surely there has been an acceptance and receipt ; but equally certainly the buyer may still object that the horse does not comply with the warranty.^^ Similarly, if there is a contract to sell goods by sample, the buyer may take and use the goods that are offered to him, but this will not preclude him from afterward showing that the warranty implied in a sale by sample was not complied with.^^ Again, if the buyer is induced to buy goods by fraud, or "Sclra-artz v. Church of Holy 117, 28 N. W. 755; Galvin r. Mac- Cross, 60 Minn. 183, 63 X. W. 266. Kenzie, 21 Or. 184, 27 Pac. 1039; In this case, altars were furnished to Schmidt p. Thomas, 75 Wis. 529, 44 the defendant .church and were N. W. 771; Walker v. Boulton, 3 actually set up in the church. The V. C. Q. B. 252. buyer objected to them and requested *° See infra, § 483. the seller to remove them. Meantime '" Howe v. Palmer, 3 B. & Aid. 321 one altar was used but not in such a Hanson v. Armitage, 5 B. & Aid. 557 way as to injure it. It was held that Smith v. Surman, 9 B. & C. 561, 577 there was no acceptance, but there Xorman v. Phillips, 14 M. & W. 277. was a dictum that unreasonable de- " 15 Q. B. 428. tention might be equivalent to accept- " Eemick r. Sandford, 120 Mass. ance, in spite of denials or objections; 309, 316, note. actions would speak louder than °' See infra, §§ 483, 489; Edwards ■words. V. Brown, 98 Me. 165, 166, 56 Atl. " Beaumont r. Brengeri, 5 C. B. 654. 301 ; Richards v. Burroughs, 62 Mich. Formalities of the Conteact. 89 a mutual mistake of fact exists as to the nature of the goods, these circumstances could be shown although the buyer had taken to the goods as owner and had paid the price for them."** ' § 79. Right of rejection. — By a curious substitution of a word that seems similar, but means something different. Lord Camp- bell's decision and statement in Morton v. Tibbett,^^ that an acceptance might take place though the right to object still re- mained, has been interpreted as deciding that acceptance could take place when a right to reject still existed.'''' It is obvious that acceptance does preclude the possibility of any assertion by the buyer that he did not at the time of the acceptance assent to become the owner either then or thereafter. The definition previously given, which seems both to accord with the natural meaning of the language of the statute and to be supported by authority, requires that the buyer shall have assented to become the owner of the goods. Though it does not follow that the buyer may not claim that the goods do not fulfill a warranty, express or implied, in regard to them, nor that he may not rescind his assent to becoming the ovsoier, if he has been induced by fraud, duress, or mistake to give such assent (or if there has been a breach of warranty in jurisdictions where breach of warranty justifies rescission of title), it does follow that he cannot assert that he did not agree to take the property in the very goods in question, if within the meaning of the statute he has accepted them.®^ § 80: Modern English rule. — The curious substitution of the word " reject " for " object " has enabled the English court to give a meaning to acceptance widely different from any meaning given by any court prior to 1878, and remarkable for its disregard of the language of the act. It is now held that if goods are offered under contract to the buyer and the buyer examines them, even though immediately upon such examination he refuses them, there "Eodgers t'. Phillips, 40 N. Y. 519, Ed-wards v. Brown, 98 Me. 165, 166, per Daniels, J. 56 Atl. 654; Eodgers v. Phillips, 40 55 15 Q. B. 428. N. Y. 519, per Woodruff, J. '"Kibble v. Gough, 38 L. T. Rep. " Remick v. Sandford, 120 Mass. 204; Page v. Morgan, 15 Q. B. D. 228; 309, 316; Simpson v. Krumdick, 28 Taylor v. Smith, [1893] 2 Q. B. 65; Minn. 352, 354, 10 N. W. 18. Abbott V. Wolsey, [1895] 2 Q. B. 97 90 FORMATIOS OF THE CoNTEACT. is an acceptance.'^^ The English Sale of Goods Act, following these decisions, now defines acceptance as meaning any act by the buyer in relation to the goods which recognizes a pre-existing contract.^'' These English cases, however, have had no following in this country'"' or even in Canada.''*"' § 81. Who may accept. — A buyer may accept the goods by an agent."^ The power of the agent to bind his principal depends upon the law of agency. The statute imposes only the limitations immediately to be mentioned. There is a dictum in a jSTew York decision that payment to an agent whose authority is derived from the same oral agreement, the validity of which is in question, will not take the agreement out of the statute.®^ The same reasoning would be applicable to an agent to receive the goods instead of the money,^^ but this reasoning is open to the criticism applicable to New York decisions upon acceptance and receipt generally, that it attempts to make a rule which the words of the statute do not justify; that something other than mere oral words are always necessary to take a case out of the statute.''* It may be observed also that imquestionably an agent as a broker or auctioneer may be authorized by parol to sign a memorandum for the buyer as part of the transaction to which the memorandum relates.^' "What- ever may be said of the iSTew York decision, it is at least settled "» Kibble r. Gough, 38 L. T. Rep. ""Scott v. Melody, 27 Ont. App. 204; Page i'. Morgan, 15 Q. B. D. 228; 193. Taylor v. Smith, [1893] 2 Q. B. 65; " Simmonds v. Humble, 13 C. B. Abbott I'. Wolsey, [1805] 2 Q. B. 97. (N. S.) 258; Jones !-. Mechanics' "» Section 4 (3). The English au- Bank, 29 Md. 287, 96 Am. Dec. 533; thorities have now defined acceptance, iSnow v. Warner, 10 Met. 132, 43 therefore, aa an acceptance of the con- Am. Dec. 417 ; Gaff v. Homeyer, 59 tract; but the statute says plainly Mo. 345; Vanderbilt v. Central R. R. that what is requisite is acceptance of Co., 43 N. J. Eq. 669, 12 Atl. 188; the goods. Cutwater )'. Dodge, 6 Wend. 397; ""Dierson r. Petersmeyer, 109 Iowa, Rogers r. Gould, 6 Hun, 229; Wilcox 233, 80 N. W. 389; Corbett v. Wol- Silver Plate Co. v. Green, 72 N. Y. ford, 84 Md. 4-2fi, 35 Atl. 1088; 17 ; Alexander r. Oneida Co., 76 Wis. Remick v. Sandford, 120 Mass. 309; 56, 45 X. W. 21. Mechanical Boiler Co. i>. Kellner, 62 '^Hawley v. Keeler, 53 N. Y. 114, N. J. L. 544, 43 Atl. 599; Stone v. 120. Browning, 51 N. Y. 211, 68 N. Y. "^ See Alexander v. Oneida Co., 76 598. Compare Standard Wall Paper Wis. 56, 60, 45 N. W. 21. Co. V. Towns, 72 N". H. 324, 56 Atl. " This rule is discussed, infra, § 87. 744; Strong v. Dodds, 47 Vt. 348. "See infra, § 114. FOEMALITIES OF THE CoNTEACT. 91 that the seller himself cannot be the agent of the buyer to accept. Aside from the statute it is entirely possible for the buyer to constitute the seller his agent to appropriate goods to the bargain, and such appropriation is sufficient to transfer title at common law, but it is not sufficient to constitute an acceptance within the statute."^ This principle is necessarily involved in the decisions which hold that delivery to a carrier or other bailee for the buyer is not a satisfaction of the statute, even though the buyer has selected and shipped the goods in accordance with the offer or contract of the consignee,''^ for the delivery to the carrier or bailee for the buyer is clearly a sufficient receipt ; what is lacking is the acceptance.'^ For this reason the delivery of goods at a particular place by the buyer, in accordance with the contract, does not satisfy the statute unless there is some acceptance before or after the delivery.^" Acceptance by one joint buyer is insuffi- cient^" unless he is as partner or otherwise expressly or impliedly authorized by his cobuyers to act for them. § 82. Parties may withdraw before the satisfaction of the stat- ute. — Until the contract or sale has become enforcible imder the statute either party may withdraw; consequently, the buyer may reject the goods though he has previously accepted them, provided he has not as yet received them,^^ and on the other hand the seller may refuse to go on with the bargain and a subsequent acceptance by the buyer will be ineffectual.''^ § 83. Acceptance under a mistake. — In Eodgers v. Phillips,^^ Daniels, J., said, referring to an acceptance of an alleged bill of lading by the buyer after the goods which it represented had been "" See supra, § 75 ; also Sotham v. Mo. App. 262, 95 S. W. 963 ; Finney Weber, 116 Mo. App. 104, 92 S. W. v. Apgar, 31 N. J. L. 266; Brewster 181. V. Taylor, 63 N. Y. 587. " See infra, § 89. " Chamberlain v. Dow, 10 Mich. «« Lloyd V. Wright, 25 Ga. 215; 319. The contrary decision of Smith Jones V. Mechanics' Bank, 29 Md. v. Milliken, 7 Lans. 336, cannot be 287, 96 Am. Dec. 533; Kemensky v. supported. Chapin, 193 Mass. 500, 79 N. E. 781; "Hatch v. Gluck, 47 N. Y. Misc. Cross V. O'Donnell, 44 N. Y. 661, 4 Rep. 128, 93 N. Y. Suppl. 508. See Am. Rep. 721. See also eases cited supra, §§ 73, 75. infra, § 89. " Smith v. Hudson, 6 B. & S. 431. «»Hart V. Bush, E. B. & E. 494; "40 X. Y. 519. Eichberg v. Benedict Paper Co., 119 92 FoEMATION OF THE CoNTEACT. destroyed : " What they did in this respect was done before they had received any intelligence of the misfortune to the property. And even if prior to that time they had determined to accept the shipment by accepting the bill of lading upon the supposition and belief that the property was then afloat, they became at liberty to rescind their determination and refuse to receive it as soon as they discovered that it had been formed under a mistake of a material fact affecting it.'' The doctrine thus stated seems open to ques- tion. By hypothesis, the requisites at common law for transfer of title have been satisfied and all that is necessary is to satisfy the statute. There seems no reason why the buyer should be pro- tected if the requirements of the statute have actually been satis- fied, even though he was induced to satisfy them by a mistaken belief in regard to an essential fact. He is only doing what he ought to do in any event, although he could not be legally com- pelled to do it. AVhere a man performs a duty, even if an unen- forcible one, such as paying a debt barred by the Statute of Limitations," or accepting goods which he had bought imder an oral contract, mistake affords no reason for excusing him.'* The case presents a certain analogy to that of a memorandum used to satisfy the Statute of Frauds, though not made for that purpose.''^ Accordingly, in Massachusetts, the buyer has been held liable upon an acceptance and receipt of part made under these circumstances."*^ § 84. Actual receipt. — There is less opportunity for doubt as to the meaning of actual receipt than there is as to the meaning of acceptance. Whatever difficulties exist in regard to receipt arc- rather due to the inherent difficulty of determining what is, in fact, possession, than to any doubt as to the meaning of the word " receipt." All cases admit that it means acquisition of posses- sion by the buyer, and in the following sections the question of what is such possession will be considered." "Townsend V. Hargravea, 118 :Mass. as acceptance and receipt is not 325. See also infra, § 94. enough. Calvert r. Schultz, 143 ■"See infra, § 106. Mich. 441, 106 N. W. 1123. As ac- "Townsend r. Hargraves, 118 Mass. ceptance has reference simply to the 32.5. See also Vincent t'. Germond, 11 buyer's assent to becoming owner.it Johns. 283. would seem that any act which, by "A custom to regard something a eustoni binding both parties, had FOEMALITIES OF THE CoXTEACT. 93 § 85. Forcible taking or giving of possession. — In aa early English case'^* it was casiially remarked by Abbott, C. J. : '"' I do not mean, however, to say that if the buyer were to take away the goods without the assent of the seller, that would not be suffi- cient to bind him." But it is probable that it would generally be held that the receipt or possession that the contract requires must he obtained with the assent of the hu^Mfe- Certainly a forcible seizure is insufficient.™ The constant use of the word " delivered " m the cases as a substitute for the words of the statute, " actual receipt," seems to indicate that the courts have in mind, at least, receipt acquired by an att on the part of the seller. The converse case arises where the seller attempts to force delivery on the buyer without his knowledge or assent This was held insufficient in a recent Iowa decision.*" The court said: " To take a contract out of the Statute of Frauds the vendor must not only act with the purpose of placing the right of possession in the vendee, but the latter must actually accept with the intention of taking pos- If it be admitted that possession, taken session as owner. been treated as an acceptance would be sufficient for that purpose under the statute; but for actual receipt an external test, of which intent of the parties cannot wholly supply the place, is necessary. Custom might, however, indicate assent to regard a delivery to a, third person or at a particular place as a receipt by the buyer, and in Calvert v. Schultz, seems to have done so. The court was doubtless influenced by the fact that the goods were not actually moved and the whole transaction rested in parol. See infra, § 86. "Tempest v. Fitzgerald, 3 B. & Aid. 680. "Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462; Baker V. Cuyler, 12 Barb. 667; Brand v. Focht, 3 Keyes, 409. " Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389. *' It may be that the court in mak- ing this remark was also influenced by the idea that acceptance must be subsequent to delivery, an idea which seems erroneous in view of the authorities cited in § 76, supra. The facts of the case make the decision obviously correct for the buyer had refused to take the goods before the attempted delivery was made without his knowledge, in the place specified in the oral contract. A more difficult case would arise had there been no such prior refusal. Such a case is covered by the lan- guage in Goodivine v. Cadwallader, 158 Ind. 202, 204, 61 N. E. 939. The court said, quoting with approval from Dehority v. Paxson, 97 Ind. 253, 256 ; " The seller must part with his control witli the purpose of vesting the right of property in the buyer who must receive with such intent on his part." Neither case, however, presented facts of the sort under discussion. 94 FOEMATION OF THE CONTEACT. without authority by the buyer, cannot be treated by him as actual receipt within the statute, it may yet be asked whether the other party m^ay so treat it. It would seem that he might. The question has not arisen, but in a Wisconsin decision it was held that where the buyer fraudulently obtained goods from a bailee of the seller, the seller might treat this as receipt by the buyer, and acceptance of an offer which the seller had made.®^ § 86. Receipt of goods in the hands of a third person. — There is no doubt that goods may be received within the meaning of the statute while still remaining in the hands of a third person as bailee. ^^ It is necessary, of course, that the buyer assent to the bailment that is made for him.^* It is also essential, in order to make out actual receipt by the buyer in such case, that there should be assent on the part of the bailee to hold for the buyer.^'* This assent of the bailee may be given, it would seem, either by attornment by the bailee to the purchaser after the purchase, or by a negotiable promise of the bailee prior to the bargain to hold the goods for any one whom the buyer should nominate, as in a negotiable warehouse receipt, since after the negotiation of the receipt the promise of the warehouseman by its terms runs di- rectly to the indorsee. The goods, though they may not be in the hands of a bailee at the time of the bargain, may be subsequently delivered to him. Whether they are then " received " by the buyer depends upon the terms on which the bailee receives them. If "' Somers r. iloLaughlin, 57 Wig. seems to have been evidence of as- 358, 362, 15 N. W. 442. Tlie court sent subsequent to the arrangement ■ said: " It was fraud upon the plain- between the seller and the bailee, tiff if the defendant obtained the but the court held it insufficient, possession of the mare from James probably because of tlie doctrine re- [the bailee] by suppressing the real ferred to in the next section, bargain. In such case, if the pos- ""^ Bentall v. Burn, 3 B. & C. 423 session is obtained by fraud, it may Farina. _r_._JHorne. 16 M. & W. 119 be treated by the vendor as a, de- Stevans i\ Stewart, 'i "^al. 140 livery to complete the sale at his Gooch v. Holmes, 41 Me. 523; To%vn- option." send r. Hargraves, 118 Mass. 325; "Daniel v. Hannah, 106 Ga. 91, Bassett r. Camp, 54 Vt. 232. But 95, 31 S. E. 734. See also cases in see King v. Jarman, 35 Ark. 190, 37 the four following notes. Am. Rep. 11; Sahlman r. Mills, 3 "Calvert v. Schultz, 143 Mich. 441, Strob. 384, 51 Am. Dec. 630. 106 N. W. 1123. In this case there Formalities of the Conteact. 95 he receives them for the buyer there is receipt ;^^ but, on the other hand, if the goods are still subject to the seller's orders, though in the bailee's hands, there is no actual receipt by the buyer.^^ § 87. New York rule. — In a leading case in New York^^ which has had great subsequent influence, the court laid down a rule more stringent than that suggested in the preceding paragraph Wright, J., said: " The uniform doctrine of the cases, howevet,, has been that in order to satisfy the statute there must be some- thing more than mere words ; that the act of accepting and receiv- ing required to dispense "vyith a note in writing implies more than a simple act of the mind." It may be readily admitted that the last sentence of this quotation is sound. The preceding sentence, that mere words are necessarily insufficient, is not so clear. In the case itself the court held that lumber on a dock apart from other lumber could not, as matter of law, be received by the buyer though the dock was, apparently, a public or gua^'-publio place. The lower court had left the matter to the jury with the instruction, " that if they were satisfied that it was the intention of the parties to consider the lumber delivered at the time of the bargain, and that nothing further was agreed or contemplated to be done in order to change the title in or possession of the lumber, the plaintiff was entitled to recover ; that the sale was not within the Statute of Frauds and did not require any note or memo- randum in writing, provided they should find from the evidence that there was a delivery and acceptance of the lumber at the time of the bargain." The majority of the upper court held that the statute could not have been satisfied, since the alleged delivery consisted merely of words. This decision and the rule on which it is based have been followed in New York^" and some other " Dodsley v. Varley, 12 A. & E. " Shelton v. Thompson, 96 Mo. 632; Cusaek i;. Robinson, 1 B. & S. App. 327, 70 S. W. 256. See also 299; Schroder v. Palmer Hardware Scully v. Smith, 110 N. Y. App. Div. Co., 88 Ga. 578, 15 S. E. 327; Moore 88, i,6 N. Y. Suppl. 998. V. Hays, 12 Ind. App. 476, 40 N. E. " Shindler v. Houston, 1 N. Y. 261, 638; Snow v. Warner, 10 Met. 132, 49 Am. Dec. 316. 43 Am. Dec. 417; Vanderbilt v. "Marsh v. Rouse, 44 N. Y. 643; Central R. R., 43 N. J. Eq. 669, 12 Hallenback i\ Cochran, 20 Hun, 416; Atl. 188. Hinchman v. Lincoln, 124 U. S. 38, 96 Formation of the Conteact. States,^" but it seems to commend itself neither as a construction of the statute nor as a practical working rule. The aim of the statute doubtless was to require certain things, because in general these things would supplement or be a substitute for parol evi- dence ; but the statute did not and could not well do away with parol evidence nor prevent the decision of cases turning some- times solely upon parol evidence. It did not attempt to do this, it simply prescribed certain requisites ; one of them is actual receipt. If the buyer is, as a matter of fact, in possession and control of goods, the fact that he acquired the possession without any act other than words is immaterial. AYhcre p)roperty is bulky it will not infrequently happen that transfer of possession will be made by the statement of the htPfei— that he relinquishes owner- ship and control to the -selfer and the assent of the aoll^ ' r to receive this. As a practical matter the New York rule is a bad one, for it is not alwaj's easy to deal with bulky property otherwise than as the parties did in the case under discussion. They should not b^i P' nalized for adopting the only natural and reasonable means of delivery. The language of this decision has been elsewhere criti- oised.^1 § 88. Receipt by delivery at a particular place. — If the agree- ment of the parties is that the goods shall be delivered at a par- ticular place, which is not in the control of any one, but to which the buyer has access and from which he may take the goods when he pleases vdthout asking permission of any one, there is receipt within the statute.''" If the goods at the time of the bargain are already lying in this place, the statement by the seller that he delivers them is likewise good delivery by the seller and receipt 8 S. Ct. 3G9, 31 L. ed. 337. The " Browne, Statute of Frauds, § 320. deci.sion last cited came up from tlie " Cu?ack c. Robinson, 1 B. & S. Circuit Court for the Southern Dis- 299; Bulkley v. Waterman, 13 Conn, trict of Now York and involved a 328; Daniel r. Hannah. 106 Ga. 91, discussion of New York law. 31 S. E. 734; Barkalow v. Pfeiffer, "Brunswick Grocery Co. r. Lamar, 38 Ind. 214; Whaley v. Ga.e, 48 116 Ga. 1, 42 S. E. 360; Dehority i'. Mich. 193, 12 N. W. 33; Somers- v. Paxson, 97 Ind. 253; Gorman t. Bros- McLaughlin, 57 Wis. 358, 362, 15 X. sard, 120 Mich. 611, 79 N. w. go3; "w. 442. But see Finney r. 'Apgar, Calvert ,■. Schultz, 143 Mich. 441, 106 31 N. J. L. 266. And compare How°ard N. W. 1123. See also Edwards v. v. Borden, 13 Allen, 299. Grand Trunk R. R. Co., 54 :\Ie. 105. Formalities of the Conteaot. 97 by the })ujer°^ unless where the New York rule, requiring more than mere words to satisfy the statute, prevails."* § 89. Receipt by delivery to a carrier. — When goods have been ordered from a distance or are selected and appropriated by the buyer and shipped to him by a carrier, the statute is not satisfied by the delivery to the carrier. There is actual receipt but no acceptance.''^ It has sometimes been thought to make a differ- ence if the buyer designated the carrier by which the goods were sent.®'' This distinction, however, is obviously unsound, for unless " Leonard r. Davis, 1 Black, 476, 17 L. ed. 222; Calkins r. Lockwood, 17 Conn. 154, 42 Am. Dec. 729; Boyn- ion r. Veazie, 24 Me. 286; Jewett v. Warren, 12 jMass. 300, 7 Am. Dec. 74; Carter l". Willard, 19 Pick. 1. See also Tansley i\ Turner, 2 Bing. X. C. 151; Cooper r. Bill, 3 H. & G. 722. "* The facts of Sliindler v. Houston, 1 N. Y. 201, 49 Am. Dec. 316, necessarily involved this question. Tlie same point was decided in the same way in a recent Michigan de- cision. Gorman v. Brossard, 120 Mich. 611, 79 N. W. 903. In this case the agreement related to a quantity of curbstone lying where the seller had deposited it after completing a bulky contract. Ladnier i;. Ladnier, 90 ]Miss. 475, 40 So. 940. See also €ooke V. Millard, 65 N. y. 352, 22 Am. Eep. 019; Brewster v. Taylor, 63 X. Y. 5S7. "= Hanson v. Armitage, 5 B. & Aid. 557; Acebal r. I^vy, 10 Bing. 376; Hart r. Bush, E. B. & E. 494; Bil- lin V. Henkel, 9 Colo. 394, 13 Pac. 420; Lloyd v. Wright, 25 Ga. 215; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 4, 42 S. E. 366; Keiwert V. Meyer, 62 Ind. 587, 30 Am. Bep. 206; Hausman v. Nye, 62 Ind. 485, 30 Am. Eep. 199; Jones v. Mechan- ics' Bank, 29 Md. 287, 96 Am. Deo. 533 ; Frostburg Min._^ Co^ y. ^^^^^New England Glass Co.,""'9 Cush. IIJL; Johnson v. Cuttle, 105 Mass. 447, 7 Am. Rep. 545 ; Kemensky v. Chapin, 193 Mass. 500, 79 X. E. 781; Gatiss ■V. Cyr, 134 Mich. 233, 96 N. W. 26; Grimes v. Van Vechten, 20 Mich. 410; Eindskopf v. De Ruyter, 39 Mich. 1, 33 Am. Rep. 340; Smith 1!. Brennan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. Rep. 867; Calvert v. Schultz, 143 Mich. 441, 106 N. W. 1123; Simmons Hardware Co. v. Mullen, 33 Minn. 195, 22 N. W. 294; Fontaine v. Bush, 40 Minn. 141, 41 N'. W. 465, 12 Am. St. Rep. 722; Waite V. McKelvy, 71 Minn. 167, 73 N. W. 727; Salomon v. King, 63 N. J. L. 39, 42 Atl. 745 ; Shepherd v. Pressey, 32 X. H. 49, 55; Standard Wall Paper Co. v. Towns, 72 N. H. 324, 56 Atl. 744; Rodgers r. Phillips, 40 X. Y. 519; Allard v. Greasert, 61 X. Y. 1 ; Hudson Furniture Co. v. Freed Furniture &, Carpet Co., 10 Utah, 31, 36 Pac. 132. See, how- ever, the contrary decision of Strong r. Dodds, 47 Vt. 348. In Iowa where the statute does not require accept- ance it has been held that delivery to a carrier under the circumstances suggested satisfies the statute. Bul- lock 1-. Tschergi, 13 Fed. Rep. 345; Leggett & Meyer Co. v. Collier, 89 Iowa, 144, 149, 56 X. W. 417. " Rodgers v. Phillips, 44 N. Y. 519, by Daniels, J. ; Spencer v. Hale, 30 Vt. 314, 73 Am. Dec. 309. 98 FOEMATION OF THE CoNTEACT. the carrier were designated by the buyer expressly or impliedly, or unless the seller were given authority to select the carrier, the title to the goods would not pass at common law and there would be no need of raising any question about the statute. The carrier would not be the agent to receive for the buyer, much less the agent to accept. And even though the carrier be specially named by the buyer, it is still true that though the carrier has authority to receive for the buyer, he has not authority to accept. The agency of the carrier is to receive and carry goods, not to decide whether they conform to the contract or offer. Accordingly it is generally agreed now that even though the carrier is particularly designated by the buyer, delivery of the goods to him does not satisfy the statute.^'' It should be observed, however, that if the goods are identified by the buyer's order, or contract, and not merely by the seller's appropriation, this constitutes acceptance; and the subsequent delivery of these goods to an authorized carrier, consigned to the buyer, being a receipt, the statute is satisfied.®* If the goods when shipped are consigned by the seller to his own order, though the bill of lading is indorsed and sent forward with a draft for the price, delivery to the carrier is no receipt by the buyer, and, therefore, though the goods were identified and assented to before shipment, the statute is not satisfied."® If the goods arrive at their destination and the buyer sends a truckman to haul them to the buyer's place of business, even then there may be no acceptance, for the buyer's dealing with the goods is as con- sistent with a temporary possession for the purpose of inspection as with an assumption of ownership.-' § 90. Keceipt of goods in the hands of buyer. — It sometimes happens that at the time of a bargain the goods in question are ^ Jones V. Mechanics' Bank, 29 ^li. seller refuses to let the car in which 287, 96 Am. Dec. 533; Smith v. Bren- the goods are loaded go forward until nan, 62 Mich. 349, 28 N. W. 892, 4 the goods are paid for. Scully v. Am. St. Rep. 867; Fontaine v. Bush, Smith, 110 N. Y. App. Div. 88, 96 40 Minn. 141, 41 N. W. 465, 12 Am. N. Y. Suppl. 998. f=t. Rep. 722; Rodgers r. Phillips, 40 "Fort Worth Packing Co. v. Con- N. Y. 519, by Woodruff, J.; Allard sumers Meat Co., 86 Md. 635, 39 V. Greasert, 61 N. Y. 1. Atl. 746. " Ullman v. Barnard, 7 Gray, 554 ; ' Standard Wall Paper Co. v. Cross V. O'Donnell, 44 N. Y. 661, Towns, 72 N. H. 324, 66 Atl, 744. 4 Am. Rep. 721. But not if the FOEMALITIES OF THE CoNTRAOT. 99 already in the possession of the buyer. Under these circumstances the goods will generally be identified and no difficulty can arise in regard to acceptance. As the buyer has possession it would seem also proper to hold that he has actual receipt of the goods. This is well settled in England^ and the English decision has been followed in this country.^ It will be observed, however, that these cases are obnoxious to the Kew York rule, to which reference has been made above,* for the whole transaction rests in parol. Accord- ingly, several decisions of the lower courts in New York have held, under such circumstances, that the statute was not satisfied."* In a recent case, however, in the Supreme Court of New York, affirmed without opinion by the Court of Appeals,^ the majority of the court, without citing the earlier decisions, held that where part of the goods had been sent to the buyer for his examination, and he subsequently had agreed to buy the goods thus in his possession, there was an acceptance and receipt of part of the goods within the meaning of the statute. While the decision commends itself, it seems inconsistent with the earlier cases referred to above and also with the rule of Shindler v. Houston,^ requiring something more than words to make out acceptance and receipt.^ § 91. Receipt of goods in the hands of seller As has been pre- ' Edan v. Dudfield, 1 Q. B. 302. lower price than at first tlie buyer ' Devine v. Warner, 73 Conn. 375* accepted. In the other cases iu thia 379, 53 Atl. 782, 96 Am. St. Rep. note the buyer was in possession by 211, 76 Conn. 229, 56 Atl. 562; Couil- virtue of a previous arrangement lard 1-. Johnson, 24 Wis. 533; Snider disconnected with the ultimate sale. V. Thrall, 56 Wis. 674, 14 N. W. 814. " Bristol v. Mente, 79 N. Y. App. See also Smith v. Bryan, 5 Md. 141, Div. 67, 80 N. Y. Suppl. 52; affd., 59 Am. Dec. 104; Norton y. Simonda, without opinion, 178 N. Y. 599, 70 124 Mass. 19. N. E. 1096. •See I 86. '1 X- Y. 261, 49 Am. Dec. 316. "Dorsey v. Pike, 50 Hun, 534; Fol- 'In Silkman Lumber Co. v. Hiin- lett Wool Co. r. Utica Trust Co., holz, 132 Wis. 610, 112 N. W. 1081, 84 N. Y. App. Div. 151; Linde v. 11 L. R. A. (N. S.) 1186, a sale of Huntington, 37 N. Y. Misc. Rep. 212. lumber which was at the time of the In the case last cited the goods had sale in a portion of the seller's lumber been put into the possession of a yard occupied by the buyer under a prospective buyer for examination, license, was held within the statute, and after temporary examination the and the doctrine of Shindler v. Hous- buyer declined the goods; but later ton, 1 N. Y. 261, 49 Am. Dec. 316, when the buyer oflFered to sell for a approved. 100 FoRilATIOX OF THE COXTEACT. viously seen® acceptance cannot be made by the seller himself acting as agent for the buyer, and as will hereafter be seen one party cannot be the agent for the other to sign a memorandum under the statute.-"' By analogy it might be supposed that the seller could not act as agent or bailee for the buyer in such a way as to constitute a receipt of the goods. Under what has been called the ISTew York rule, which requires more than mere words in order to satisfy the statute, this result is practically reached; for where the seller holds possession of the goods after the sale for the buyer, there is generally no oiitward dealing with the goods to indicate the change of ownership ; they simply remain where they have been, but the seller has agreed to hold them in a different capacity. Accordingly, some decisions may be found which deny broadly that the seller can receive for the buyer.-'' Such decisions, however, are at variance with the English law. The early decisions seem to have gone almost to the length of holding that the mere making of a bargain and assenting to the transfer of the property in specified goods, of itself, operated as a receipt, since the seller thereby became bailee for the buyer by operation of law,^^ biit later, though the possibility was still ad- mitted of actual receipt taking place while the seller still re- tained the goods, it was decided that unlcps the seller ceased to hold in the character of unpaid vendof and held wholly as bailee for the buyer, there was no receipt within the statute.^® The same test has been adopted in jurisdictions which do not adopt the New York requirement of something other than words." The seller in 'Supra, § 81. the goods but scanty ei-idence of ^' Infra, § 114. any actual receipt, if by that is " Bruns-wick Grocery Co. i\ Lamar, to be understood a taking of possea- 116 Ca. 1, 42 S. E. 366. eion; indeed, in Blenkinsop r. Clay- " Chaplin v. Rogers, 1 East, 192, ton, as reported, there seems to have note; Anderson r. Scott, 1 Campb. been none. After the decision of 235, note; Hodgson r. Le Bret, 1 that last case, the current of au- Campb. 233; Elmore r. Stone, 1 thority set the other -svay." Taunt. 4.i8; and Blenkinsop v. Clay- "Tempest r. Fitzgerald, 3 B. & ton, 7 Taunt. 597. In Blackburn, Aid. 080; Bill r. Bament, 9 JI. & W. Contract of Sale (1st ed.), p. 33, 36; Lillywhite v. Devereux, 15 M. & after referring to these decisions, W. 285; JIarvin v. Wallis, 6 E. & B, the author says : " In all these 726. cases there seems to have been "Ex parte Safford, 2 Low. 563; ample evidence of an acceptance of Terney r. Doten, 70 Cal. 399 11 FOEMALITIES OF THE CONTRACT. possession will rarely have parted with his lien unless he has either been paid or has bcoB -g iven credit ; in either of these events, without any express words, it seems that the holding of the seller is necessarily wholly as agent for the buyer, and if it be admitted that the seller may act as the buyer's agent to receive, there seems no reason to question that there has been an actual receipt. As payment satisfies the statute,"" receipt in such a case is im- material. The fact that at the expiration of the period of credit the lien will revive if the price has not been paid is im- material. In the meantime the right of the buyer to demand the goods has been absolute, and actual receipt, for however short a period, is enough.-'^ In regard to the sufficiency of the test pro- vided by the sellers' lien, it should also be observed that by con- tract in many jurisdictions the seller may reserve an equitable lien independent of actual possession; but such a lien will not, of itself, prevent actual receipt by the buyer. ■'^ § 92. Symbolic receipt. — It is not always possible in the case Pae. 743; Devine v. Warner, 76 Conn. 229, .'je Atl. 562; Edwards v. Brown, 98 ile. 165, 56 Atl. 654; Safford v. McDonough, 120 Mass. 290; Rodgers V. Jones, 129 Mass. 420; Kirby v. Johnson, 22 Mo. 354; Sotham v. Weber, 110 Mo. App. 104, 92 S. W. 181; Clark v. Labreche, 63 N. H. 397 ; Eeinhart r. Gregg, 8 Wash. 191, 193, 35 Pac. 1075; Janvrin v. Max- Well, 23 Wis. 51. "^ Infra, § 98. ^ Kelly V. Brooks, 25 Ala. 523. "Dodsley c. Varloy, 12 A. & E. 632. In this case the goods after the purchase were deposited on the prem- ises of a, third person, an agreement being made that they should not be removed by the buyer until paid for. The buyer exercised various rights of ownership over the goods where they were stored and the court held there was actual receipt, saying: "We think that, upon this evidence, the place to which the wools were re- moved must be considered as the de- fendant's warehouse, and that he was in actual possession of it there as soon as it was weighed and packed: that it was thenceforward at his risk, and if burned must have been paid for by him. Consistently with this, however, the plaintiff had not what is commonly called a lien, de- terminable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownership, inde- pendent of the actual possession, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the goods should not be removed to their ultimate place of destination before payment. But this lien is consistent, as we have stated, with the possession having passed to the buyer, so that there may have been a delivery to and actual receipt by nim. This, we think, is the proper conclu- sion upon the present evidence; and there will be no rule." 102 Formation of the Conteact. of bulky goods, or goods at a distance, for the buyer to transfer possession, of the goods themselves immediately and, under the Statute of Frauds as well as in other branches of the law of sales, where delivery is impossible, the delivery of the symbol has in some cases been recognized as sufficient. The typical case always given is the delivery of a key of a room, or building, in which the goods are stored." Likewise where iron was lying in a separate jnass and the seller said, " I deliver this iron to you." " Similar words in regard to logs floating in a stream are sufficient.^^ So where cattle are running on a range, branding them and turning them loose again is sufficient.^" In these cases it will be observed that though the goods themselves are not changed from the position which they occupied before the bargain, that position is one which puts the goods as fully in the actual physical control of the buyer as of any other person ; but cases may be supposed where this is not true. For instance, where goods are at sea no actual delivery is possible, but the goods are in the possession of the captain of the vessel, who for this purpose is the ag^iit of the seller. It may be doubted whether in such a case there can be actual receipt of the goods by the buyer without a negotiable bill of lading, although there are doubtless decisions holding that there is a delivery so far as to satisfy common-law requisites of delivery between buyer and seller, or even so far as to bind cred- itors of the seller. § 93. Documents of title. — By far the most important kind of symbolic delivery is that made by bills of lading and warehouse receipts. There are surprisingly few cases raising the qiiestion, but upon principle it would seem that delivery of a non-negotiable document of title, though frequently called s^Tnbolic delivery, in "Atwell V. ililler, 6 Md. 10, 61 "Calkins r. Lockwood, 17 Conn. Am. Dec. 294; Sliindler r. Houston, 154, 42 Am. Dec. 720. 1 X. Y. 261, 49 Am. Dec. 316; Gray "Leonard i. Davis, 1 Black, 476, V. Davis, 10 N. Y. 285. See also 17 L. ed. 222; Boynton r. Veazie, 24 ViiiiiiK r. Gilbreth, 39 lie. 496; Pack- Me. 286; Jewett i. Warren, 12 Mass. ard r. Dunsmore, 11 Cush. 282; 300. 7 Am. Dec. 74; Carter v. Wil- Wilkes r, Ferris, 5 Johns. 335, 4 Am. lard, 10 Pick. 1. Dec. 364; Barr ,-. Reitz, 53 Pa. St. =» ^^■alden i. Murdock, 23 Cal. 540, 256. In the cases last cited the ques- 83 Am. Dec. 135. tion of delivery did not relate to the Statute of Frauds. FOEMAHTIES OK THE CoA'TEACT. 103 cases not involving the Statute of Frauds, can hardly be con- sidered as actual receipt of the goods by the buyer. The goods are, in fact, in the possession of a bailee, and until the bailee attorns to the buyer he is an agent for the seller and his possession is the seller's possession.^^ If, however, a document of title is negotiable there seems no reason to doubt that the indorsement and delivery of the document may be a receipt of the goods. The meaning of negotiability, primarily, is : That the obligor, that is, the bailee, is directly bound by contract to the assignee of the document immediately upon its assignment — no attornment being "Bentall v. Burn, 3 B. & C. 423; Farina i-. Home. 16 M. & W. 119. In T;he former of these cases the court said of a delivery order: "There could not have been any actual ac- ceptance of the wine by the vendee until the dock company accepted the order for the delivery, and thereby assented to hold the -vrine as the agents of the vendee. Tliey held it originally as the agents of the vendors, and as long as they con- tinued so to hold it the property was unchanged. It has been said that the London Dock Company were bound by law, when required to hold the goods on account of the vendee. That may be true, and they might render themselves liable to an action for refusing so to do; but if they did wrongfully refuse to transfer the goods to the vendee, it is clear that there could not then be any actual acceptance of them by him until he actually took possession of them." And in the latter case, Parke, B., said of a dock warrant : " This warrant is no more than an engagement by the wharfinger to deliver to the consignee or any one he may appoint ; and the wharfinger holds the goods as the agent of the consignee (who is the vendor's agent), and his possession is that of the consignee until an as- signment has taken place, and the wharfinger has attorned, so to speak. to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his pos- session that of the assignee, and then only is there a constructive delivery to him. In the meantime the war- rant, and the indorsement of the war- rant, is nothing more than an offer to hold the goods as the warehouseman of the assignee." So in Boardman i\ Spooner, 13 Allen, 353, the accept- ance of a bill of goods stored in a general warehouse, an order for their delivery without notice to the ware- house was held insufficient to satisfy the statute. See also Quintard i. Bacon, 99 Mass. 185. See, however, Wadhams v. Balfour, 32 Or. 313, 51 Pac. 642. In Rodgers v. Phillips, 40 N. Y. 519, the court remarked: 'As- suming, as it may properly be done, that the acceptance of the bill of lading by the defendants under ordi- nary circumstances would have been equivalent to the acceptance of the property mentioned in it, yet that could not be the effect of it where, as in this case, the property had been previously lost." But in this case the court was considering acceptance rather than actual receipt, and ac- ceptance of a document of title may well indicate assent to buy the goods which it represents. 104 Formation of the CojsTeact. necessary. He is, therefore, agent of the buyer as soon as the buyer becomes the indorsee of the document.^^ § 94. Part of the goods. — By the terms of the statute accept- ance and receipt of part of the goods suffice, and it is immaterial how small the part may be. It is, therefore, sufficient if the buyer receives a sample of the goods, provided the sample is part of the bulk ; that is, if it diminishes the quantity of goods subsequently to be delivered to the buyer. ^* But otherwise where the sample is merely to show what the goods are like.^* A sample given merely for the purpose of examination is of course insuffi- cient.^' It is immaterial when the part is received and it seems that an executory contract for unspecified goods may be made binding by the specification and acceptance and receipt of a por- tion of the goods under this contract, though the remainder are unspecified.^* It is essential in order to make acceptance and receipt of part suffice, that the part be accepted and received as part of the goods. If, therefore, the buyer when taking the part declines to take more, the statute is not satisfied."' But where part of the goods were taken by the buyer into his control after the destruction of the remainder, this act of the buyer was held sufficient to render him liable for all the goods.^^ So if an =' Mueller v. Giive, 12 Mo. App. Co., 12 il. & W. 33; Rickey r. 588; Wadbams r. Balfour, 32 Or. Tenbroeek, 63 :Mo. 503; Gabriel c. 313, 51 Pac. 642. In Wadbams v. Kildare Elevator Co., 18 Okla. 318, Balfour tbe receipt does not seem to 90 Pac. 10. See, however, May r. bave been negotiable, but the court Ward, 134 Mass. 127; Ladnier v. held its delivery sufficient. Ladnier, 90 ili^s. 47-i, 43 So. 946. ==Hinde p. Vhitebouse, 7 East, ^ Atherton c. Xewhall, 123 Mass. .^.iS; Gardner r. Grout, 2 C. B. 141, 25 Am. Rep. 47. See also Dixoa (N". S.) 340; Gilliat v. Roberts, 19 v. Yates, 5 B. & Ad. 313; Pratt v. L. J. Ex-. 410; Moore v. Love, 57 Chase, 40 Me. 269, 273. Miss. 765; Brock c. Knower, 37 Hun, =« Goddard r. Demerritt. 48 :Me. 609. 211; Townsend v. Hargraves, 118 '* Morton v. Tibbett, 15 Q. B. 428; :Mass. 325. These decisions seem Dierson r. Petersmeyer, 109 Iowa, sound for the statute is satisfied ac- 233, 80 N. W. 389; Richardson v. cording to its terms, and though the Smith, 101 Md. 15, 60 Atl. 612, 70 buyer may not have contemplated L. R. A. 321, 109 Am. St. Rep. 552; making himself liable for the whole, Moore r. Love, 57 :\Iiss. 765. he did not repudiate tbe contract and "Mechanical Boiler Co. v. Kellner, his liability necessarily follows. See 62 N. .T. L. 544, 43 Atl. 599. also Vincent v. Germond, 11 Johns. "° Scott V. Eastern Counties Ry. 283, and supra, § 83. Formalities of the Contract. 105 agent selling goods for his princi23al agrees to throw in goods of his own in order to induce the buyer to enter the bargain, and the latter goods axe delivered, the statute is not satisfied as to the other goods.'* Other decisions involving an acceptance and receipt of part of the goods, are given in the note below. ^^ § 95. Choses in action. — Most of the statutes which specifically include choses in action within the statute also mention acceptance and actual receipt of the evidences of the choses in action as a method of satisfying the statute, but even where evidences of the choses in action are not mentioned there can be no doubt that delivery of any document which is customarily regarded as repre- senting the choses in action would be sufficient. Thus the ac- ceptance and receipt of a stock certificate would satisfy the statute so far as a contract to sell stock is eoncerned.^^ How far beyond the case of a document courts might go is doubtful. In Jones v. Eeynolds^^ a model of an invention as yet unpatented was de- livered, and this was held sufiicient to satisfy the statute when the invention was sold. In regard to choses in action having no tangible evidence, the method of satisfying the statute by accept- ance and actual receipt is not suitable and resort must be had to the other methods prescribed. § 96. Acceptance and receipt present questions of fact. — It is for the jury to determine in a doubtful case whether there has been acceptance and receipt.^^ If, however, there is no evidence justifying the jury in finding more than one way, the court may properly decide the question."* § 97. " Or give something in earnest to bind the contract." — At the present day, earnest as distinguished from part payment is sel- "■McCormick Harvesting Co. V. == Edan v. Dndfield, 1 Q. B. 302; Cusack, 116 Mich. 647, 74 N. W. 1005. Lillywhite v. Devereux, 15 M. & W. There were necessarily two sales, one 285; Morton r. Tibbett, 15 Q. B. 428; by the principal and one by the agent. Hinchman v. Lincoln, 124 U. S. 38, See Tompkins v. Sheehan, 158 N. Y. 48, 8 S. Ct. 369, 31 L. ed. 337; Waite 617, 53 N. E. 502. •^'. McKelvy, 71 Minn. 167, 73 X. W. »° Elliott V. Thomas, 3 M. & W. 727; Houghtaling r. Ball, 19 Mo. 84, 170; MacEvoy v. Aronson, 46 N. Y. 59 Am. Dec. 331; Becker v. Holm, 89 Misc. Rep. 622, 92 N. Y. Suppl. 724. Wis. 86, 61 N. W. 307. "Berwin v. Bolles, 183 Mass. 340, "Hinchman v. Lincoln, 124 U. S. 67 N. E. 323. 38, 48, 8 S. Ct. 369, 31 L. ed. 337. '^ 120 N. Y. 213, 24 N. E. 279. 106 FoEilATION OF THE CoNTBACT. dom or never given. Formerly a small payment was sometimes made to bind the bargain which vyas not regarded as part of the price. ^^ This would perhaps still be binding and satisfy the statute, but the possibility of earnest as distinguished from part payment is now of little practical importance.^** The only question that has arisen in modern times in regard to the meaning of earnest is whether a sum of money deposited with a third person as a for- feit to secure the performance of a bargain, but not to be applied as part payment is earnest within the meaning of the statute. It was held not to be.^^ If money were deposited with the buyer to be applied on the price if the buyer completed the bargain but otherwise to be forfeited, there would, however, seem to be a part payment. § 98. "Or in part payment." — The statute requires no specific amount but it does require payment. Consequently a tender is «» See Bach v. Owen, 5 T. R. 409, where the buyer paid a, halfpenny to bind the bargain, and this was held sufficient to transfer the property in the horse which was the subject of the sale. " See Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306; Jennings r. Dunham, 60 Mo. App. 635. "Noakes r. Morey, 30 Ind. 103; Howe r. Hayward, 108 Mass. 54, 11 Am. Rep. 306 ; Jennings r. Dunham, 60 JIo. App. 635. In the latter case the ciTiirt said, .it p. 638 : " Orig- inally this ' earnest ' was not neces- sarily a part payment. It was a cus- tom under the common law, and seems also to have been a custom in other countries than England to give something to bind a bargain. In some countries some act was per- formed. Story on Sales, § 273. Benjamin states in his work on Sales, § 196, that one species of earnest in the Roman law was a payment of a sum which if the sale was carried out was to be credited on the price, but which carried the understanding that it was forfeit money if the sale ■^^•as not completed by the buyer; and if the contract was not performed by the seller, he was to return to the buyer the money advanced together with a like sum as a forfeit on his part. Whether a sum which is termed forfeit money was ever a species of earnest by the common law need not now be investigated, since it has ceased to be of practical importance. It is now considered, that giving something in earnest to bind the bar- gain, and giving something in pay- ment mean the same thing; that is, a part payment of the price. Ben- jamin on Sales, § 189 ; Story on Sales, §§ 273, 275. So, while in some countries in olden times, ' earn- est to bind tlie bargain ' might consist of forfeit money, it is not so now. In modern times, earnest must be a part payment of the price. And, where the parties to a contract put up a sum of money to be forfeited to the nondefaulting party, it is not a part payment, and, therefore, does not take the contract out of the Statute of Frauds.*' Formalities of the Contract. 107 not enough.^» iSTor does it suffice that the price remain in the buyer's hands for the seller to draw upon.^" It has been seen that contracts of barter are within the statute.*^ It must follow that the 'payment required by the statute is not necessarily a pay- ment in money. It may be other property." This is put beyond doubt in the Sales Act by the provision that the price may be any personal property.*^ So the use of property has been held a pay- ment.*^ Likewise services." If the contract or sale specifies a money price, however, the requirement of the statute would seem not to be satisfied by negotiable paper given for the price until -the paper is paid or unless it was taken in absolute payment.*' The buyer's note not generally being talten in absolute payment will, therefore, generally not be sufficient,*® but the note of a third person given as absolute payment is sufficient.*' The most =« Davis V. Phillips (K. B. 1907), 24 T. L. R. 4; Herahey Lumber Co. V. St. Paul Sash Co., 66 Minn. 449, 69 X. W. 215; Edgerton_ u. 'Hajg e. 41 Vt. 676. " Bowers v. Anderson, 49 Ga. 143. In tliis case the buyer was obviously simply to remain a debtor. If the buj'er became the bailee or trustee of specific money, the cases would be in- distinguishable from the analogous situation in regard to goods, supra, i 91. *° See supra, § 56. " Eastern R. R. Co. v. Benedict, 10 Gray, 212; Kuhns v. Gates, 92 Ind. 66; Wallace v. Long, 105 Ind. 522, 526, 5 N. E. 666, 55 Am. Rep. 222; Weir V. Hudnut, 115 Ind. 525, 18 N. E. 24; Howe v. Jones, 57 Iowa, 130; Driggs V. Bush, 152 Mich. 53, 115 N. W. fl85; Burton r. Gage, 85 Minn. 355, 88 N. W. 997 ; Dow v. Worthen, 37 Vt. 108 ; Sharp v. Carroll, 66 Wis. 62, 27 N. W. 832. "= Section 9 (2). "Weir V. Hudnut, 115 Ind. 525, 18 N. E. 24. "Wallace v. Long, 105 Ind. 522, 526, 5 N. E. 666, 55 Am. Rep. 222; White V. Drew, 56 How. Pr. 53. In Dl-iggs v. Bush, 152 Mich. 53, 115 K. W. 985, the defendant agreed to sell and the plaintiff to buy certain hay at $10 a ton. The hay was to be baled by the plaintiff and then trans- ported by the defendant to an ad- joining town. The plaintiff sent men to the defendant's premises who with his assent baled the hay, and the plaintiff paid them for the work. The defendant afterward refused to carry out the contract. It was held that the propertj' had not passed to the buyer, and that, therefore, the baling of the hay inured to the bene- fit of the defendant, and that this benefit received in accordance with the contract was a part payment taking the case out of the statute. " A check drawn by the buyer and afterward paid by the bank was held to satisfy the statute in Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544, and in McLure v. Sherman, 70 Fed. Rep. 190, and Logan v. Carroll, 72 Mo. App. 613, a check, though not cashed, was held to suffice. "Krohn v. Bantz, 68 Ind. 277; Ireland v. Johnson, 18 Abb. Pr. 392. " Combs V. Bateman, 10 Barb. 573. 108 Formation op the Contract. difBcult question of part payment is where the seller is indebted to the buyer on a previous account and contracts to sell, or sells, goods, in satisfaction of the claim in -whole or in part. The leading case upon this point is Walker v. Xussey,** where the goods were not delivered and the court held that by the terms of the bargain the old claim was not to be extinguished until the goods should be delivered and that, therefore, there was no pay- ment. Pollock, C. B., said, however: "Had these parties posi- tively agreed to extinguish the debt of £4 odd, and receive the plaintiff's goods pro tanto instead of it, the law might have been satisfied without the ceremony of paying it to the defendant and repaying it by him. But the actual contract did not amount to that, and there has been no part payment within the statute." There seems no reason to question the correctness of this dictum and it has been approved in Vermont*'' and finds support else- where.^" But generally it has either been overlooked or not proved convincing in subsequent decisions, for they decide, or at least say for the most part, that the mere agreement that the old account should be canceled is not enough.^-' This leads to the rather curious result that though as a matter of common law the whole price has been paid by the cancellation of an indebtedness, there has not been any part payment within the statute, because the satisfaction of the price is effected wholly by parol. The statute puts no limitation on the way that the price should be paid, and its seems an unnecessary piece of judicial legislation for courts to make the requirements of the statute more stringent than the Legislature has done. This might be expected of i^Cew York, in view of the rule laid down by the courts of that State " 16 M. & W. 302. "Norton v. Davidson, [1899] 1 '" Dow r. Worthen, 37 Vt 108. Q. B. 401 ; Galbraith r. Holmes. 15 "^"Peake v. Conlan, 43 Iowa, 297; Ind. App. 34, 43 X. E. 575; Gorman r. Howe 1. Jones, 57 Iowa, 130, S N. W. Brossard, 120 Jlicli. 611, 79 X. W. 451, 10 N. W. 299; Cotterill r. 903; ]\Iattliiesspn r. :McMahon's Adni., Stevens, 10 ^\is.. 422. In the case 38 N. J. L. 536; Artcher v. Zeh, 5 last cited the arrangement was Hill, 200; Walrath r. Richie, 5 Lans. triangular, the buyer agreeing to as- 362; Brabin r. Hyde, 32 N. Y. 519; sume a debt of the seller's to a third Miles r. Covaoevich, 40 Or. 239, 66 person who assented to the transac- Pac. 914. In many of these cases, as tion. This novation was held to in ^^'alker v. Nussey, there was amount to payment within the merely an agreement to extinguish statute. tlie debt later. Lord Halsbury in FOEMALITIES OF THE COjSTEACT. 109 in regard to acceptance and receipt,'^- and of other jurisdictions which have followed N"ew York, but with the exception of Pollock's dictum quoted above, and the few authorities following it, the rule seems general. The surrender of a note representing the buyer's claim is sufficiently tangible to amount to part payment.'^^ As is indorsement upon a note," or an entry in books of account.^^ Payment to a third person, in accordance with an agreement made with the seller that the price shall be so paid, is enough,^" and of course payment to the seller's agent is enough.^^ This has been so held even though a local statute required that authority to enter into a contract required in law to be in writing can only be given in writing. ^^ Payment to an agent for several sellers who were entitled to share the money paid satisfies the statute as to each of the sales. ''^ So payments made on a general account and applicable to the price of several lots of goods take all the trans- actions out of the statute."" But payment for a past purchase, though made as an inducement for making a present one, is insuffi- cient.'^^ § 99. Time of payment. — Under the English statute and simi- lar American statutes (including the Sales Act), it makes no Xorton V. Davison, uses language to impose on the appointment of an similar to that in Shindler v. Hous- agent by requiring that the agent ton, 1 N. Y. 261, 49 Am. Dec. 316, shall not arise from the same parol that mere words are insufficient to agreement which it is sought to satisfy the statute, though it is per- validate has been previously criti- fectly settled in England that mere cised. See § 81. -words may be sufficient, e. g., where °° Case v. Kramer, 34 Mont. 142, 85 the goods are already in the posses- Pac. 878. In this case: "An agent sion of the buyer or where the seller orally employed to sell cattle was in- tecomes bailee for the buyer. Supra, structed to require a part payment of f§ 90, 91. the purchase price. The agent pro- '- See supra, § 86. cured a purchaser who made a partial " Sharp V. Carroll, 66 Wis. 62, 27 payment. Held, that the contract of N. W. 832. sale was valid notwithstanding Civ. " Dieckman v. Young, 87 Mo. App. Code, § 3085, declaring that au- 530. thority to enter into a contract re- " Norwegian Plough Co. v. Han- quired by law to be in writing can thorn, 71 Wis. 529, 37 N. W. 825. only be given in writing." "Brady !--. Harrahy, 21 U. C. Q. B. »» Burhans v. Corey, 17 Mich. 282. 340. See also Stoddard v. Graham, «° Berwin v. BoUes, 183 Mass. 340, 23 How. Pr. 518. 67 N. E. 323. "Hawley v. Keeler, 53 N. Y. 114. "Organs. Stewart, 60 N. Y. 413. The limitation which this case seeks 110 Formation of the Conteaot. difference when the payment is made with reference to the oral bargain.*^ In jSTew York and a number of other States, however, the statute expressly inserts the words " at the time." "^ Under, a statute in this form it is necessary, in order to make a subsequent payment operate as a satisfaction of the statute, that there should be at least a restatement or recognition of the essential terms of - the contract, when the payment is made.*'* § 100. " Some note or memorandum in writing of the contract or sale." — The third way of satisfying the statute in regard to sales or contracts to sell, unlike the other methods, is not peculiar to the section of the statute devoted to sales of personal property. On the contrary the requirement of a writing is in the other sec- tions the only method of satisfying the statute. Consequently, in determining the sufficiency of a memorandum in writing, de- cisions under any of the sections are often in point. The wording of any section under which a case comes up should, however, be observed, for many of the statutes in regard to agreements con- cerning land and other matters within the statute require the " contract " to be in writing in order to be enforcible, while sec- tions relating to the sale of goods, with almost perfect uniformity, are satisfied by a " note or memorandum." ^ The difference be- tween a contract in writing and a memorandum of a parol con- « Davis r. :\Ioore, 13 Me. 424; "See Raymond f. Colton, 104 Fed. Thompson i:. Alger, 12 Met. 428, 430; Rep. 219, 43 C. C. A. 501; Koewing v. Dallavo r. Richardson, 134 Mich. 226, Wilder, 128 Fed. Rep. 558, 63 C. C. A. 96 N. W. 20; Gault v. Brown, 48 ISC; Franklin r. Matoa Gold Min. N. H. 183, 2 Am. Rep. 210. Co., 158 Fed. Rep. 941, C. C. A. "» California, Civ. Code (1903), ; Bissell i: Balcom, 39 N. Y. 275; § 1739; Colorado, Mills' St. (1891), Hawley r. Keeler, 53 X Y. 114; § 2025; Idaho, Civ. Code (1901), Hunter v. Wetsell, 57 N. Y. 375. 15 § 2739; Minnesota, Rev. Laws Am. Rep. 508; s. c, 84 N. Y. 549, (1905), § 3484; Montana, Civ. Code, 38 Am. Rep. 544; Jackson v. Tupper, § 2340; Nebraska, Comp. St. (1899), 101 N. Y. 515, 5 N. E. 65; Milos r. § 3183; Nevada, Gen. St. (1885), Covacevich, 40 Or. 239, 242, 66 Pac. § 2631; New Y'ork, Birdseye's Rev. 914; Bates v. Chesebro, 32 Wis. .394, St. (1901), p. 2634; North Dakota, 36 Wis. 636 ; Paine u. Fulton, 34 Wia. Rev. St. (1895), § 3958; Oregon, 83; Kerkhof r. Atlas Paper Co., 68 Hill's Annot. Laws (1892), § 785; Wis. 674. 32 N. W. 766; Hanson v. Utah, Rev. St. (1898), § 2409; Wis- Roter, 64 Wis. 622, 25 N. W. 530; consin, Sanborn & Berryman St. Crosby Hardwood Co. v. Trester, 90 (1898), § 2308; Wyoming, Rev. St. Wis. 412, 63 N. W. 1057. (1899), § 2954. Formalities of the Contkact. Ill tract is important. Thus a note or memorandum may be made at any time prior to the beginning of the action'^" and as will appear from subsequent discussion, need not be made with the intent of making a memorandum. The parol evidence rule also affects differently a contract in writing from a memorandum in writing. The former is necessarily the only complete statement of the contract and the only evidence in regard to it, but a written memorandum may be shown by parol to be inaccurate or inade- quate, and hence not a compliance with the statute.®^ § 101, Foriii of memorandum. — The memorandum may be in any form, and an enumeration of particular cqses that have arisen is not exclusive, but merely illustrative. The memorandum may of course be in the form of a carefully prepared written contract, but it may also be in the form of a letter or letters,*® receipts,®' an "" This section of the Statute of Georgia (Code of 1895), § 2693 (7), requires the " promise " to be in writing, but the Supreme Court of Georgia seems to lay no stress on this difference from the ordinary form of the statute. See Foster v. Leeper, 29 Ga. 294; Phillips v. Ocmulgee Mills, 55 Ga. 633. In these cases memoranda made subsequently to the oral bargain, and in the former case in the nature of an admission of a past contract rather than an expres- sion of a presen* nromise, were held sufficient. See, however, Jackson v. Strowger Telephone Exchange, 108 Ga. 646, 34 S. E. 207. "See supra, § 71. " See the distinction taken in cases where the " contract " was required to be in writing. Halsell v. Eenfrow, 202 U. S. 287, 26 S. Ct. 610, 50 L. ed. 1032; Zimmerman v. Zehendner, 164 Ind. 466. Also in cases where some " note or memorandum " only was necessary. Ingraham v. Strong, 41 III. App. 46; Catterlin v. Bush, 39 Or. 496, 59 Pae. 706, 65 Pac. 1064. In the lattSr case the court said: " The memorandum and the contract or agreement are not to be confounded as one and the same thing. The memorandum is understood to be a. note or minute informally made of the agreement, which may have but a verbal existence, expressing briefly the essential terms, and was never intended to stand as and for the agreement itself. The necessary ele- ments are that it must contain the essential terms of the contract, ex- pressed with such a degree of cer- tainty that it may be understood without recourse to parol evidence to show the intention of the parties. Mere formal or nonessential' terms will be implied, but the elements necessary to a completed contract must be intelligently expressed, though ever so briefly." " Many cases of this sort may be found in following passages passim. =» Evans v. Prothero, 1 De G. M. & G. 572; Williams v. Morris, 95 U. S. 444, 24 L. ed. 360; Littell v. Jones, 56 Ark. 139, 19 S. W. 497; Eppich v. Clifford, 6 Colo. 493; Ellis V. Bray, 79 Mo. 227; Kidder v. Flanders, 73 N. H. 345, 61 Atl. 675; Gordon v. Collett, 102 N. C. 532, 9 S. E. 486. All these decisions related to contracts to sell land. 112 Formation of the Conteact. invoice or statement of account,™ a bill or note/^ records of munici- pal officers^^ or of a private corporation/" entries in books of ac- count'* or meuiorandum books of any kiud.'° Telegrams also are sufficient.^® The only difficulty in regard to telegrams relates to the agency of the telegraph operator who actually writes and signs the messages as delivered. Statutes in some States expressly pro- vide that such telegrams are to be treated as the writings of the sender, but the result seems to be the same in the absence of such a statute.'^'^ The memorandum may be written in pencil.''^^ § 102. Contents of memorandum — Parties. — It is essential that the memorandum state the substance of the transaction to which it relates. It is necessary, therefore, that the memorandum state the name of both parties to the bargain.'^ It is essential, too, that "Barry v. Coombe, 1 Pet. 640, 7 L. ed. 295 (land) ; Linton v. Wil- liams, 2o Ga. 391 (goods). "Reynolds i. Kiric, 105 Ala. 440, 17 So, 9o (land) ; Phillips v. Ocmul- geo ilills, 55 Ga. 633 (goods) ; Work V. Cowhick, 81 111. 317 (land) ; Little V. Pearson, 7 Pick. 301, 19 Am. Dec. 289 (land). '- Bourland v. Peoria County, 16 111. 53S ; Grimes i'. Hamilton County. 37 Iowa, 290; :\IciIanu3 i: Bos- ton, 171 Mass. 152, 50 X. E. 607; Stivons r. Jluskegon, 111 IMich. 72, 09 X. W. 227, 30 L. E. A. 777; Curtis r. Portsmouth, (17 X. II. 50fi, 39 Atl. 439 (all these decisions related to contracts conceriiiiij^ land) ; Argus Co. c. Albany, 55 X. V. 40,1, 14 Am. Picp. 200 (not to be performed within a year) . " Lamkin v. Baldwin !Mfg, Co,, 72 Conn. 57, 43 .\tl. .")n3, 1042, 44 L. R. A. 780 (land and goods) ; Tufifs V. Plymouth Mining Co., 14 Allen, 407 (not to be performed within a, 3'ear) . " Sari II. Bourdillon, 1 C. B. (X, R.) 188 (goods) ; Xewell r, Rad- ford, L. R. 3 C, P, 32 (goods). '" Champion r, Plummer, 1 B. & P. {X, R.) 252 (goods); Coddlngton v. Goddard, 16 Gray, 436 (goods) ; Wiener r. Whipple, 53 Wis. 298, 10 X, W. 433, 40 Am. Rep. 775 (goods). "Little c. Dougherty, 11 Colo. 103 (not to be performed within a year) ; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511 (goods). '' See cases cited in the preceding note. " ilerritt v. Clason, 12 Johns. 102, 7 Am. Dec. 286 (goods); Clason v. Bailey, 14 Johns. 484 (goods) ; Draper i;. Pattina, 2 Speers, 292 (goods) ; ;\tcDowell c. Chambers, 1 Strnbh. Eq. 347, 47 Am. Dec. 539 (land). " Champion v. Plummer, 1 B. & P. (X. R.) 252 (goods) ; Vandenbergh V. Spooner, L. E. 1 Ex. 316 (goods) ; CJrafton r. Cummings, 99 U. S, 100, 25 L. ed. 366 (land); Kingsley !'. Siebrecht, 92 Me. 23, 42 Atl, 249, 09 Am. St, Rep. 486 (land) ; McElroy !'. Seery, 61 ^Id. 389, 4S Am. Rep. 110 (goods) ; Clampet v. Bells, 39 Minn. 272, 3i. XT. W. 495; Lewis i'. Wood, 153 ifass. 321, 26 X. E, 802, 11 L. R. A. 143 (land) ; Mentz v. Xew- witter, 122 X^. Y. 491, 494, 25 X. E. 1044, 11 L. R. A, 97, 19 Am. St. Rep. 514; Ward r. Hasbrouclv> 169 X, Y. 407, 62 X, E. 434; Frahm r. Metcalf (Xeb.) 106 X. W. 227 (land). Formalities of the Contract. 113 it shall appear which party is buyer and which is seller.^" But though a memorandum might not indicate to a person unac- quainted with trade usages which party was buyer and which seller, yet if a person cognizant of such usages would be able to determine the relation of the parties the memorandum is suffi- cient.®^ § 103. Contents of memorandum — Price. — If the parties agreed upon a price, it is generally required that the price be stated in the memorandum.^" If, however, the agreement in fact did not mention a price, none need be mentioned in the memorandum. The law will imply an obligation to pay a reasonable price. The memorandum need be no more definite than the contract actually was, and the law will make the same implication in regard to the memorandum that it does in regard to the promise.®^ If the con- tract is sufficiently definite for the law to enforce aside from the statute, the memorandum, if it states the contract exactly, will ™ Frank v. Eltringham, 65 Miss. 281, 3 So. 665 (goods). In Vanden- bergh r. Spooner, L. R. 1 Ex. 316, the following memorandum was held insufficient for this reason: " D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenbergh, now lying at the Lyme Cobb, at Is. per foot. (Signed) D. Spooner." So in Bailey v. Ogden, 3 Johns. 399, the statute was held not to be satisfied by the following memorandum : 14 December. J. Ogden and Co. Bailey k Bogart. Brown, 121/2. White, 16%. Debenture part pay. " Thus in Newell v. Radford, L. E. 3 C. P. 52, the following memoran- dum was held sufficient: Mr. Newell, 32 sacks eulasses at 39s., 280 lbs., to wait orders. June 8. John Williams. And in Salmon Falls Mfg. Co. v. Goddard, 'u ilow"!" 446, 14 L. ed. 493, the following was held suf- ficient : 60 and tO days. Sept. 19,— W. W. Goddard, 12 mos. 300 bales S. F. drills . . . , 7% 100 cases blue do. . . 8% Credit to commence when ship sails; not after Deer. 1 — delivered free of charge for truckage. The blues, if color satisfactory to purchasers. R. M. M. W. W. G. *- Reid r. Diamond Plate Glass Co., 85 Fed. Rep. 193, 29 C. C. A. 110; Elmore v. Kingscote, 5 B. & C. 583; Acebal v. Levy, 10 Bing. 376; Goodman v. Griffiths, 1 Hurl. & N. 574; Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, 62 Am. St. Rep. 345; Waterman v. Meigs, 4 Cush. 497; Ashcroft v. Butterworth, 136 Mass. 511; James v. Muir, 33 Mich. 223; Stone v. Browning, 68 N. Y. 598, 604; Hall v. Misenheimer, 137 N. C. 183, 49 S. E. 104, 107 Am. St. Rep. 474; Ida v. Stanton, 15 Vt. 685, 40 Am. Dec. 698 ; Scott v. Melady, 27 Ont. App. 193. "Hoadly v. M'Laine, 10 Bing. 482; Valpy V. Gibson, 4 C. B. 837; O'Neil V. Crain, 67 Mo. 250. 114 E0EMATI02^ 01' THE CoXTBACT. likewise be sufficient. The question of price would not need fur- ther discussion were it not for the statement frequently made, and sometimes enacted by statute, that the consideration need not be stated in a memorandum under the Statute of Frauds. This doctrine arose from decisions under the section of the statute relating to guarantees.** In some States, at least, the same rulb is by statute applicable to other sections of the statute, including that relating to the sales of goods.*^ In the case of an executory contract for the purchase or sale either of land or goods, it is impossible where performance of the defendant's promise is con- ditional upon the payment or performance to be given or promised by the other jiarty to make an accurate statement of that promise, whether that of the seller or of the buyer, without stating the consideration, for the defendant's promise is not absolute but con- ditional either on the payment of the price or on the other perform- ance promised by the plaintiff, and similarly the consideration of the buyer's promise is either the transfer of title to the property or the promise to transfer the title, and the buyer's promise to pay the price is conditi<:inal upon this transfer. Accordingly there is, or may be, an inconsistency between the statements that the price must be stated in the memorandum and that the consideration need not be. Perhaps the best way to harmonize, as far as possible, the two statements is liy construing consideration as used in the latter rule to mean executed consideration only. Under, this con- struction, where a contract for the sale of goods is unilateral, only the promisor's promise need be stated, but where it is bi- lateral, even though the performance of one promise is not made expressly conditional upon the performance of the other, the memo- randum must contain sufficient to make it appear what the obli- gation of both parties was, in order to make it a sufficient memo- randum for the promise of either.®^ •MYain r. Warlters, 5 East, 10. Encyc. (2d ed.) S70. In England the This decision required the considera- statute (19 & 20 Vict. c. 97, § 3), tion for a guarantee to be expressed, is confined to guarantees, but the rule of tlie case seems not to '" This was lield to be the case in have been acceptable in England and Maine and Michigan. Williams v. a, number of other jurisdictions and Eobinson, 73 ^Fe. 186, 40 Am. Rep. either hy statute or l)y decision, it is 352; Reid i'. Diamond Plate Glass laid down that the consideration Co., 8.5 Fed. Rep. 193. 29 C. C. A. need not be stated. 29 Am. & Eng. 110; and the New Jersey statute Formalities of the Contract. 115 § 104. Contents of memorandum — Other terms of the contract. The property to which the sale, or coutract to sell, relates, must be must certainly be construed in tlie same way. " The question has been discussed in a few cases. The fullest dis- cussion is in the case of Hayes v. Jackson, 159 Mass. 451, 34 N. E. 683. This was an action upon a contract for the sale of land, the only memo- randum of the sale stated the sale to be "for the sum of $14,140, sub- ject to a mortgage of $9,000." It was agreed by both parties at the trial that the assumption of the mort- gage was part of the consideration and went to make up the sum of $14,140. A majority of the court held the contract enforcible, holding that Pub. Sts. c. 78, § 2, making any statement of the consideration unnecessary, made an erroneous state- ment unimportant. Holmes, J., de- livering the opinion of the majority, said : " Of course it may be said that, in a bilateral contract like the present, the contemporaneous pay- ment of the price is a condition of the promise, and, therefore, that the promise cannot be set forth truly unless the consideration is stated. But the language of the section is general, and should be read as no doubt it was meant. The only effect is that a promise set forth as abso- lute may be subject to an implied condition of performance on the other side. When such an implied condi- tion exists it will be construed into the writing, and knowledge of the law gives notice of its possible ex- istence. In some cases it has been held unnecessary to state the con- sideration, even when there is no pro- vision like our section 2, although the consideration was executory. Thorn- burg V. Masten, 88 N. C. 293 ; Miller V. Irvine, 1 Dev. & Bat. 103 ; Ellis v. Bray, 79 Mo. 227 ; Violett v. Patton, 5 Cranch, 142, 3 L. ed. 61; Camp v. Moreman, 84 Ky. 635, 2 S. W. 179. In Howe v. Walker, 4 Gray, 318, Thomas, J., plainly indicated the opinion that section 2 of the statute applies in all cases, pointing out that this does not mean that when the parties are reversed the oral agree- ment will be sufficient to sustain an action." Field, C. J., with whom Knowlton, J., concurred, wrote an elaborate dissenting opinion, saying in part: "I do not know whether the majority of the court Intend to make a distinction between contracts of sale described in the first section of Pub. Sts. c. 78 [land], and eon- tracts of sale described in tlie fifth section [goods, wares, and mer- chandise]. . . . When the whole con- tract or promise of the defendant is to do a certain thing, and this is an absolute promise, resting upon a con- sideration which has been executed, there is some reason in saying that the memorandum signed by the de- fendant need not contain the con- sideration or inducement of the con- tract or promise. But in a contract executory on both sides, where the promises are mutual, and each is the consideration of the others the prom- ises are conditional, and one party agrees to perform his part of the con- tract only on condition that the other will perform his part, and it cannot be known what the promise of the one is without knowing the express or implied promise of the other. A promise to convey land because the promise has actually received $1,000 is not the same as a promise to con- vey land if the promisor will pay $1,000 on receiving the conveyance, and a promise to convey land for $1,000 to be paid on the delivery of the deed is not the same as a promise to convey land for $10,000 to be paid on the delivery of the deed. The con- 116 FoKMATION OF THE Co.\TEACT. described in tlie memorandum.®^ So, although the contract appear- in the memorandum seems to be complete upon its face, if, ins ditions on which the vendor agrees to convoy are often many and compli- cated, and involve the assumption of mortgages and the performance of other acts. If a mere acknowledg- ment in writing by the vendor that he has agreed to convey specific land to the vendee on terms which are not expressed is sufficient to satisfy the Statute of Frauds, then it is open to the vendee to prove by oral testimony the price to be paid, and all the other terms of the contract to be per- formed by him, and the statute will no longer prevent frauds and per- juries. If it is a condition of the promise of the vendor that it is not to be performed unless at the time of the performance the vendee pays money and gives or assumes mort- gages, the condition qualifies the prumise and is a part of it, and the writing should contain all that is es- sential to show what the promise or contract on the part of the vendor in fact was. The decision of the court seems to me in great part to nullify tlie statute.'' Tlie rule which the ma- jority of the courts here enforce has been applied in contracts for the sale of land in Nebraska and Texas. Euzicka v. Hotovy, 72 Neb. 589, 101 N. \\'. 328; Dyer c. ^Yinston, 33 Tex. Civ. App. 412, 77 S. W. 227. But in New York after the repeal of a stat- utory requirement that the considera- tion must be expressed in the memo- randum, the court said, in dealing with a bilateral contract to employ and to serve : " Tlie agreement of the defendants in this case was not merely to pay so much money to plaintiff. It was to pay him that money for his services as salesman to be thereafter rendered. For what the payment was to be made consti- tuted a material and essential ele- ment of the agreement on the part of the defendants; an important con- dition of the contract on their side. Their agreement was not absolute to pay the money. It was conditioned upon the rendition of the stipulated services. Any memorandum which omits the condition falsifies the agree- ment which they actually made, and represents them as agreeing to pay the money absolutely when they did not so contract. It is no answer that the omitted condition, coupled with the other party's promise of per- formance, constituted a consideration for his own agreement, and so need not be expressed." Drake r. Seaman, 97 N. Y. 230, 235. In New York it is to be observed that at least no statute provided that the considera- tion need not be expressed, but in ^Michigan, though construing the stat- ute of that State as enacting that the consideration in a contract for the sale of goods need not be ex- pressed, the Circuit Court of Appeals, nevertheless, held that the price, if ai,n-eed upon by the parties, must be stated. Eeid (. Diamond Plate Glass Co., 8.1 Fed. Eep. 193, 29 C. C. A. 110. See also Kelley v. Holbrook, 191 Jlass. ,50.5. 77 X. E. 1037, where the court held that a memorandum signed by an auctioneer which mis- stated the price was not good, be- cause the auctioneer was not author- ized to sign such a memorandum. "Peoria Grape Sugar Co. v. Bab- cock, 67 Fed. Rep. 892; Waterman r. Jleigs, 4 Cush. 497; May r. Ward. 134 Mass. 127; New England Wool Co. r. Standard Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 516. And see cases cited in. the following Bection. FOEMALITIES OF TUB CoNTEACT. 117 in fact, there -were additional terms, the memorandum is insnffi- cient.®* Thiis, if there is a warranty,^" or a condition of approval by the buyer,'-'" or a term of credit, or security,'-*^ or if the place or time of delivery is agreed upon, these must be included in the memorandum."^ But if no time is agreed upon the law will imply a reasonable time and the memorandum need contain no reference to time.®' Any other terms are subject to the same rule.®* But ™ Stewart i: C ook, 118 Ga. 541, 45 Sr=-irr'=59»r-~Tlie' contract in this case referred to square and round bales of cotton. The court said: " If nothing more appeared, it might be that evidence could have been in- troduced to sliow vi'hat was the stand- ard weiglit and trade meaning of square bale and round bale. Pol. Code, § 1 (4) ; Civil Code, § 3675 ( 2 ) . But the petition shows that the parties themselves agreed that the bales should be of a particular weight. It, therefore, appears that there was a parol agreement, when the law requires that the contract of sale shall be in writing (Civil Code, § 2693, par. 7) ; by which it of course means the entire contract, with all stipulations and provisions which have been assented to by the parties at the time of the sale." So in another Georgia decision the writing stated a contract for the sale of a given number of pounds of " ribs." The evidence showed that the term " ribs " is ambiguous, there being several distinct kinds of " ribs " known to the trade, and the plaintiff understood from the parol agreement that the ribs referred to were of a particular kind and of average weight. It was held the writing did not sufficiently identify its subject-matter, nor contain the en- tire agreement. Borum v. Swift & Co., 125 Ga. 198, 53 S. E. 608. And see the cases in the following not«s. '"Fisher v. Andrews, 94 Md. 46, 50 Atl. 407. ^ Boardman v. Spooner, 13 Allen, 353. "lister V. Heidt, 86 Ga. 22G, 12 S. E. 214, 10 L. R. A. 108 (land) ; Norris v. Blair, 39 Ind. 90, 10 Am. Hep. 135; Fisher v. Andrews, 94 Md. 46, 50 Atl. 407 ; Morton v. Dean, 13 Met. 385 (land) ; Davis v. Shields, 26 Wend. 341 ; Soles v. Hickman, 20 Pa. St. 180 (land). The terms " regular " and " net," attached to the prices named in a memorandum, may be given a meaning by parol evi- dence. Olson V. Sharpless, 53 Minn. 91, 55 N. W. 125. '= Fisher i . Andrews, 94 Md. 46, 50 Atl. 407; Kriete r. Myer, 01 Md. 558; Gault v. Stormont, 51 Mich. G36, 17 N. W. 214 (land) ; Smith t. Shell, 82 Mo. 215, 52 Am. Eep. 365; Lehenbeuter Co. i\ MeCord, 65 Mo. App. 507; Kidder v. Flanders, 73 N. H. 345, 61 Atl. 675 ; Davis r. Shields, 26 Wend. 341. "= Kidder v. Flanders, 73 N. H. 345, 61 Atl. 675. See also cases cited in the preceding notes. "Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486 (land) ; Biest v. Ver Steeg Shoe Co., 97 Mo. App. 137, 70 S. W. 1081 (eon- tract not to be performed within a year). 118 rOBMATIOX OF THE CoNTEACT. a separate bargain, though made at the same time as that in question, need not be mentioned in the memorandum.^'' § 105. Certainty of description. — The question often arises whether a memorandum states with sufficient certainty the bar- gain to which it relates. Even though all the terms are included, they may be written in such an abbreviated way or with such brief description of the property that it is not apparent to an uninstructed person what the meaning of the writing may be. The question involved is the same whether the abbreviated descrip- tion is of the parties, the goods, or other terms of the bargain. The general rule applicable to such cases was thus stated in a recent Massachusetts case :®'^ " While parol evidence is not compe- tent to contradict or vary the terms of such a memorandum to show what is intended, we are of opinion that the situation of the parties and the surrounding circumstances at the time when the contract was made may be shown to apply the contract to the subject-matter." It has been further held that abbrevations used by the parties or a private code could be translated and the mean- ing of them shown by parol evidence. ^'^ It is on this principle °= Coddington r. Goddard, 16 Gray, Sept 19,— W. \Y. Goddard, 12 mos. 436. In this case the court said: 300 bales S. F. drills IVi " Xor does it affect the validity of 100 cases blue drills S'Ji the memorandum that the broker did Credit to commence when ship sails ; not include in it the stipulation made not after Deer. 1 — delivered free by the defendant that he should have of charge for truckage. the right to add to the sale 100,000 R. :M. M. pounds of copper the next day. This W. W. G. was a wholly separate and independ- The blues, if color is satisfactory ent agreement which in no way af- to purchaser. fccted the sale actually made." It So in Bibb r. Allen, 149 U. S. may perhaps be questioned whether 481, 37 L. ed. 819, the memorandum the court did not go too far. See relied on was made up of slip con- also Agnew r. Baldwin, — Wis. — , tracts. The court said: "It is no 116 N. W. 641. valid objection to these ' slip con- "" New England Wool Co. v. Stand- tracts,' executed in duplicate, that ard Worsted Co., 165 ilass. 328, 332, the sales purported to be made on 43 N. E. 112, 52 Am. St. Rep. 516. account of 'Albert,' 'Alfred,' 'Alex- " The leading case upon this point ander,' 'Amanda,' and ' Winston,' etc., is Salmon Falls Mnfg. Co. v. God- which names were adopted by the dard, 14 How. 446, 14 L. ed. 493. In defendants, and which represented that case the following memorandum them and their account. Parol evi- was held sufficient: dence was clearly competent to show Formalities of the Contract. 119 that the doctrine must be rested, that if a memorandum names A. as one of the parties to the transaction, though A. can be held personally liable,"^ it may, if desired, be shown by parol that A. was agent for B. in an action brought either by B. or against him.^" The same doctrine has been applied where the agent's name ap- peared professedly as that of an agent but the paper did not name his principal.^ If, however, the agent's name appears on the paper, not as that of a contracting party, either as principal or agent, the name will not serve as a substitute for the name of a party to the contract.^ Instead of naming the parties they are that these fictitious names, which de- fendants had adopted, represented them as the parties for wliose ac- count the sales were made." And in Newell I'. Radford, L. R. 3 C. P. 52; American Mfg. Co. v. Midland Steel Co., 101 Fed. Rep. 200; Sanborn i'. Flagler, 9 Allen, 474, initials used to designate the parties were held suf- ficient. In Haskell v. Tukesbury, 92 Me. 551, 43 Atl. 500, 69 Am. St. Rep. 529 (guarantee), "Friend Geo.'' and '• Pop Dyer " were held sufficient designations. So in Lee v. Cherry, 85 Tenn. 707, 4 S. W. 835, 4 Am. St. Rep. 800 (land), "Mr. Lee" was held to be sufficient description of one of the parties. In Heflfron v. Armsby, 61 Mich. 505, 28 N. W. 672, "300 cases B. M. corn " was held a sufficient description. In New England Wool Co. V. Standard Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 516, '' F. C." was held a sufficient de- scription of a certain kind of wool. On the other hand in North v. Mendel, 7.3 Ga. 400, the court refused to allow proof that " Mendel " meant the firm of M. Mendel & Bro. This decision seems hard to reconcile with others previously cited, although it is to be observed that not only was Men- del an incomplete designation of the firm intended, but also naturally meant an individual member of the firm. The decision seems too strict. See also Frank v. Miller, 38 Md. 450 ; Flash !•. Rossiter, 116 N. Y. App. Div. 88, 102 N. Y. Suppl. 449. Whether a memorandum in cipher agreed upon orally and, therefore, wholly untranslatable without parol evidense of one of the parties is a good memorandum has not as yet perhaps been settled. ^ Higgins i\ Senior, 8 M. & W. 834. ""Wilson V. Hart, 7 Taunt. 295; Trupian v. Loder, 11 A. & E. 589; Salmon Falls Mfg. Co. r. Goddard, 14 How. 446, 14 L. ed. 493; Haskell V. Tukesbury, 92 Me. 551, 43 Atl. 500, 69 Am. St. Rep. 529; Kingsley r. Siebrecht, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486; Williams v. Bacon, 2 Gray, 387; White v. Dahl- quist Mfg. Co., 179 Mass. 427; Tobin V. Larkin, 183 Mass. 389, 67 N. E. 340; Haubelt r. Rea & Page Co., 77 Mo. App. 672; Dykers v. Townsend, 24 N. Y. 57; Thayer v. Luce, 22 Ohio St. 62; Brodhead v. Reinbold, 200 Pa. St. 618, 623, 50 Atl. ^229, 86 Am. St. Rep. 735. But see Ward V. Hasbrouck, 169 N. Y. 407, 62 N. E. 434. •Tobin V. Larkin, 183 Mass. 389, 67 N. E. 340. 'Grafton v. Cummings, 99 U. S. 100, 25 L. ed. 366 ; Nichols v. Johnson, 10 Conn. 192; O'Sullivan v. Overton, 56 Conn. 102, 14 Atl. 300; MoGovern V. Hern, 153 Mass. 308, 26 N. E. 861, 120 FOKZSIATION 01' THE CoXTEACT. sometimes described, and if the description is sufficiently definite, the memorandnm is good.'' On the other hand it is obvious that this principle must have some limitation. A description of the sellers by the word " sellers," or " vendors," is obviously insuffi- cient.* So such a description as H. " and those associated with him." ^ These descriptions are absolutely accurate, and if parol evidence of all surrounding circumstances were admitted, it would probably be evident what the meaning of the description was. But this is not sufficient. The descrijotion in the writing itself is too general. The same kind of question arises in regard to a description of the property sold. The goods must be sufficiently described for reasonable identification. A distinction should be noticed between sales or contracts to sell specific goods, and contracts to sell goods of a certain kind. In a contract of the latter sort, a memorandum need be no more definite than the contract. If the contract is definite enough 10 L. R. A. 815, 25 Am. St. Rep. 632; Sherbourne v. Shaw, 1 Jv^. H. 157, 8 Am. Dec. 47. All the cases just cited related to sales at auction, and it was held that the auctioneer's name appearing as that of the auctioneer was insufficient to supply the place of the name of his principal. The doctrine was thus ex- pressed in McGovern v. Hern, supra: " Tlie trouble witli the memorandum in the case before us is that the seller is not named nor descrilied. Sullivan Bros, were indicated in one corner of the paper as the auction- eers, and it cannot be fairly consid- ered that tbey were anything else. Their function as auctioneers was recognized in the memorandum, as something distinct from that of parties contracting for unnamed principals." "Sale v. Lambert, L. E. 18 Eq. 1; Eossiter v. Miller, 5 Ch. D. 648. In these cases the word " proprietor " was held sufficient. Catling r. King, 5 Ch. D. 660. In this ease, " Trus- tee selling under a trust for sale," was held sufficient. In Carr v. Lynch, [1900] 1 Ch. 613, the words "In consideration of you this day having paid me the sum of £50," was held to furnish sufficient description of the buyer as it furnished means of identi- fying him. Compare with these decisions the case of Selby c. Selby, 3 Jleriv. 2, where the signature to a letter " your afifectionate mother," was held an insufficient signature. This decision is criticised by Browne, Statute of Frauds, § 362. The ques- tion whether such words- are a suffi- cient signature is not precisely the same question as whether the de- scription of a party to the bargain is sufficient to make the memorandum a complete statement of all the terms of the transaction. * Catlin V. King, 5 Ch. D. 665 ; Mc- Oovern r. Hern, 153 Mass. 308, 26 N. E. 861, 10 L. R. A. 815, 25 Am. St. Rep. 632. ° Seymour v. Cushway, 100 Wis, 580, 76 N. W. 769, 69 Am. St. Rep. 957. FOHMALIXIES OF TUB CoNTEACT. 121 to be enforced, a memorandimi which states the contract as it was made will be sufficient, and, on the other hand, if the memo- randtim is more general than the actual contract, the memorandum will be insufficient, though seeming good on. its face because not fully stating the contract the parties made.* Where, however, the sale or contract relates to specific goods, there can be no ques- tion about lack of deflniteness in the contract itself so far as con- cerns the goods to which the bargain relates; the qiiestion is wholly whether the memorandum sufficiently describes these goods. This question has risen more frequently in regard to sales of real estate than in regard to sales of personal property ; still there are a few decisions in regard to goods.^ It will be seen from, the decisions cited below that the American courts have re- ° See supra, § 104; also American Mfg. Co. V. Midland Steel Co., 101 Fed. Hep. 200, where billets "4x5 or 5x5" was held sufficient descrip- tion. ' New England Wool Co. v. Stand- ard Worsted Co., 1C5 Mass. 328, 43 N. E. 112. In this ease the property described was " about 2,000 to 2,500 lbs. P. C." The property in regard to which the parties were bargaining was in fact, 2,443 lbs. of " F. C." wool. The court held the descrip- tion sufficient because when it was shown " who and where the parties were at the time of making the con- tract, and what property the plain- tiflf had on hand of the kind described, it is clear without more that the memorandum referred to the 2,443 lbs. of wool on hand." No doubt the court is right in saying that it was possible to translate the memoran- dum when the surrounding circum- stances and the time and place of the bargain was shown but that would also be true of a memorandum which read: "I have sold you the goods you looked at, at the usual price," but it may be doubted whether this memorandum would be sufficient. In Burgess Sulphite Fibre Co. v. Broomtield, 180 Mass. 283, 02 N. E. 367, the words, " all your iron which you may desire to sell," were held a sufficient description of iron on the premises of the plaintiff's mill. In Brewer v. Horst-Lachmund Co., 127 Cal. 643, 60 Pac. 418, 50 L. R. A. 240, the subject-matter of the sale was a certain lot of hops. Samples had been given from these hops and, in accordance with a custom in the trade, samples were designated by a number — in this case, "13." The reference to the goods in a, telegram as "13 " was held a, sufficient 'descrip- tion of them. A more extreme case is Macdonold v. Longbottom, 1 E. & E. 977, where evidence was admitted to show that the words, " your wool," referred to certain particular Avool which the plaintitT had under his control at the time of the contract. Many cases have arisen, present- ing similar questions as to real estate, and the cases show some con- flict. See Wood on the Statute of Frauds, § 353. In Mead v. Parker, 115 Mass. 413, it was held, following Hurley !'. Brown, 98 Mass. 545, that in a memorandum of sale, dated at Boston, the words " a house on Church street " sufficiently described the FOEMATIOX OF THE C'o:\'TEACT. quired somewhat greater particularity in descriptions of real estate than in descriptions of goods. In the cases relating to real estate it may be that too great stress is laid upon a description property. Wells, J., in delivering the opinion of the court, said: "The most specific and precise description of the property intended requires some parol proof to complete its identification. A more general de- scription requires more. When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations and the writing was made, are disclosed, if the mean- ing and application of the writing, read in the light of those circum- stances, are certain and plain, the parties will be bound by it as a suffi- cient written contract or memoran- dum of their agreement." Jlead V. Parker was followed by Slater i'. Smith, 117 Mass. 96. In Doherty v. Hill, 144 Mass. 465, 11 N. E. 581, the description '' Stoneham Es- tate on Congress street, owned by Sarah A. Hill " was held insuffi- cient because iSarah A. Hill owned more than one estate on Congress street, -In Hodges y. Kowing, 58 Conn. 12, 18 Atl. 970, 7 L. R. A. 87, "his place in Stratford containing about •fifteen acres " was held sufficient, but in Andrew !>. Babcock, 63 Conn. 109, 26 Atl. 715, - a tract of land with all the buildings thereon, adjoining the New Haven and Derby R. R., in tlie town of Orange, and containing some twenty acres more or less " was said to be insufficient, though apparently the seller owned no other property answering the description. In Fortesque c. Craw- ford, 105 N. C. 29, 10 S. E. 910, " his land " was held " too vague and in- definite to admit parol evidence to locate the land." In Falls of Neuse iltg. Co. !'. Hendricks, 106 N. C. 485, 11 S. E. 568, "his land where he now lives " was held suf- ficient if susceptible of identification by e.>:trinsic evidence. In Lowe v. Harri.s, 112 N. C. 472, 17 S. E. 539, 22 L. R. A. 379, the description was also " his land," but since the earlier ca.^es and since the cause of action arose in this case, the Legislature had enacted that parol testimony might be introduced to identify the land. TliC description was held insufficient, a, majority of the court holding that the act could not operate retro- actively. In Jones i. Tye, 93 Ky. 390, 20 S. W. 388, " land adjoining the McKebly land " was held insuf- ficient, the seller having two parcels answering that description. In Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 372, " a piece of property on the corner of Main and Pearl streets, city of Natchez, county of Adams, State of Mississippi," was held insufficient, because there was no reference in the memorandum it- self to anything extrinsic that would define which corner was intended. The court said, however : " Extrane- ous evidence so referred to, and any other evidence in connection with it, which may serve to identify and fix the limits of the land intended is admissible and proper. There would appear to be no limit in that direc- tion except what is to be found in the general reference of the contract. For example, if a contract purports to embrace all the land owned by the vendor in a certain county, it would be admissible to prove any and all the land owned by him in that county." In Mellon r. Davison, 123 Pa. St. 298, 16 Atl. 431, "a lot of Formalities of the Conteact. 123 that will identify beyond possibility of doubt the subject-matter of the sale. " John Smith " in a memorandum does not identify, beyond a peradventure, a party so designated, but it is a suffi- cient description of a person of that name intended. It may, perhaps be questioned whether " Estate on Congress Street, owned by Sarah A. Hill," is not a sufficient description of the estate the parties were bargaining about, although the description may be applicable to another piece of property also. The particularity of description essential in a memorandum must ultimately resolve itself into one of degree. This has been so well expressed by an English writer that his remarks are quoted below.^ ground fronting about 190 feet on the P. R. R. in the 21st ward, Pitts- burgh, Pa.," ^Ya3 held insufficient, though the seller owned but one piece of land in the ward named. See also Eineer v. Collins, 156 Pa. St. 342, 27 Atl. 28. In Thompson v. New South Coal Co., 135 Ala. 630, 34 So. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49, " coal lands," was held an insuf- ficient description. See also Ryan ■v. United States, 136 U. S. 68, 34 L. ed. 447; Daniels v. Rogers, 108 N. Y. App. Div. 338, 96 N. Y. Suppl. 642; Penshorn v. Kunkel (Tex. Civ. App.), 90 S. W. 719. With these American decisions should be con- trasted the English cases in Ogilvie v. Foljambe, 3 Meriv. 53. The descrip- tion " Mr. Ogilvie's house " was sup- posed to be sufficient. In Bleakley V. Smith, 11 Sim. 150, "The prop- erty in Cable St." was held to be sufficient, and in Shardlow v. Cotter- ell, 20 Ch. D. 90 (C. A.), the court went much farther. It was an auction sale, and the memorandum was con- tained in the following receipt signed by the auctioneer. " Received of Mr. A. Shardlow the sum of £21 as de- posit on property purchased at £420 at Sun Inn, Pinxton, on the above date. Mr. George Cotterell, Pinxton, owner." Lush, L. J., said (at p. 97 ) ; " Suppose a horsedealer having a great number of horses offers one of them for sale; the horse is trotted out and approved of, but the parties differ about the price. Suppose the next day the seller writes and says, ' I will let you have that horse for £50,' and the buyer writes to accept the offer, would not parol evidence be admissible to show what horse was meant? " ' F. Vaughan Hawkins, Esq., on the Principles of Legal Interpreta- tion with Reference Especially to the Interpretation of Wills, 2 Judicial Soc. Papers, 298 (p. 326 et seq.) : " The other limit of interpretation of which I have spoken is the result of the necessity of there being a sufficient written expression; the meaning of the words cannot be added to or corrected beyond a cer- tain point, or the words cease to be capable of bearing the interpretation to be put upon them; and though the intent may be known, there is no expression in -which it can clothe itself. It cannot be too often re- peated that legal interpretation is not a mere ascertaining of the in- tent; it acts only by putting a. meaning consistent with the inteuii. 124 FOE.MATION OF THE CoNTEACT. § 106. Intent to make a memorandtim is not requisite. — As the purpnse of the statute is to require a formality of proof in order to make a coBtract enforcible, not to impose a new rule of law upon the Avords. And the answer to tlie question. What is a sufficient written expression? will vary largely witli different classes of writings, and under different systems of jurispru- dence. In this respect it is manifest that private documents must be in- terpreted more strictly than public. A deed or will made by a private person is made with the knowledge of the command of the law, which re- quires the writer to express himself fully and completely, and gi%'es valid- ity to the instrument only on the con- dition of reasonable compliance with the demand which it has imposed. On the other hand a document, such as a treaty, which as to its form is almost wholly independent of everything but the will of the con- tracting parties, leaves the amount of tlie expression much less determinate ; and, altliough an intention must fail of effect which has no corresponding expression of any kind in the docu- ment, yet the interpreter must re- sort very much to the inferred will of the parties themselves for a cri- terion of sufKcieiiiy of expression, wliich thus becomes almost wholly merged in the general inquiry after the probable intention, — meaning as I do, by inleniion, wherever it occurs in this paper, not a mere inchoate act of the mind, that wliich a person intended to do, but took no step to- ward doing, but something which as !i mental act was complete, and which the writer endeavored to express by the words he made use of, although those words in fact express his mean- ing more or less imperfectly. In the interpretation of writings where the latitude allowed to the interpreter is considerable, and particularly where direct evidence of intention not contained in the writing is admitted, the question of what is a sufficient written expression becomes evidently of great practical importance. If a perfectly definite intent can be col- lected by tlie aid only of collateral evidence of it, coupled with the mean- ing of the words, it is probable that the latter element, that of the mean- ing of the words, bears a sufficiently great proportion to the former, to assure the interpreter that the words Avill bear the meaning and express it sufficiently. But this security does not exist where parol declarations of intention, for example, are admissible. The undoubted fact that no general definition of what is in such cases a sufficient expression can be fixed upon beforehand is made use of by Sir James Wigram as a constant argument against admitting evidence of intention generally. ' Once admit,' says he (p. 128), 'that the person or thing intended by the testator need not be adequately described in the will, and it is impossible to stop short of the conclusion tliat a, mere mark will in every case supply the place of a proper description.' Stirely there is no impossibility sucli as here contended. It is reasonable to say that if a testator, for instance, de- scribes a person by his surname and Christian name, that is a sufficient description to satisfy the letter of the law, though it may in fact be in- sufficient completely to identify the person intended. If, on the other hand, a testator should say, ' I give 60 and so to m;/ son,' when he has nine sons, it would probable be right to decide that such a, description was not a sufficient one, since it was one FoitMAI.lTIKS OF THE CoKTEACT. 125 as to wliat constitutes a valid contract, it is immaterial with what purpose the requirement of the statute is fulfilled. In this connection, however, it is especially important to distinguish decisions under statutes which require the " contract " to be in ■which the writer must have known, or ought to have known, would prove ambiguous, and to allow of an addi- tion to which by parol testimony would be to offer a great temptation to perjury. It is evident that a, line must be drawn somewhere, and ■when necessary it will doubtless be drawn in practice ; but as yet the boundary of testamentary interpreta- tion on this side is somewhat im- perfect, and there is no rule forbid- ding the introduction of parol testi- mony of intention to fill up even such a manifestly inadequate descrip- tion as that I have last supposed. Many questions on the sufficiency of expression arise upon the interpreta- tion of informal writings, as, for instance, contracts; what part of a ■contract required by law to be in ■m-iting need be expressed in the writ- ing: how far usages and customs of trade may be imported, and the like. In fact all the most difficult problems of interpretation arise upon the lim- its of it, upon the extent to which the meaning of words may be modi- fied by other signs of the intent; upon the contest in short, as it is often termed, between the letter and the spirit. Into the principles which questions of this nature involve, I will not at present enter more mi- nutely : they will suggest themselves in relation to the different classes of legal writings to any one who clearly appreciates the real nature of the process of what I have called in- ferential interpretation, a process in xeality simple, and which, like reason- ing, is practiced correctly every day "by persons who have never consid- ered what it is they do, when they perform it, but which can never be understood so long as it is confounded with the mere grammar and diction- ary operation of ascertaining the meaning of words. One considera- tion, however, I will not pass over : I mean the great differences which exist in the measure of interpretation as applied under different judicial sj's- tems and by different judicial minds, and the consequent necessity for ac- cumulating a certain mass of decisions, in order to supply a uniform standard, and to fix the nearest approach to absolute correctness by striking an average of opinions through a long series of years. It is sometimes said, in relation particularly to testament- ary interpretation, that authorities can be of no service, that to quote cases is to construe one man's non- sense by another man's nonsense, and that all a judge has to do is to read the writing and endeavor to make out from it the meaning of the testator. Now, if interpretation were, like the determination of the meaning of words whose signification is fixed, something that can be done with ab- solute certainty, in which one man would come to the same conclusion as another, and which is, so to speak, the same all the world over, the study of previous authorities might indeed be unnecessary. But, in truth, it would be as reasonable to say that no authorities were to be consulted on a question of equity; that a judge ought to act upon his own notions of what was equitable ; and that as circumstances are infinitely various, one case could never show what it was right to do in another. Experi- ence shows that the limits of inter- pretation will be fixed at very differ- ent points by different persons ; and 126 Formation of the Contract. writing.^ Such a statute can hardly be satisfied unless the writ- ing was made by the parties as the expression of the contract, but the requirement of a note or memorandum is satisfied by a letter which, after stating the terms of the bargain, repudiates it.-'° iSo a letter written by the party to be charged to his own agent, or any other third person, is enough if it contains the terms of the bargain." It should follow that a document retained wholly within the control of the party to be charged may also be a good memorandum. By hypothesis the bargain at common law is corn- there is perhaps no legal subject which brings out peculiarities of in- dividual bias and disposition more strongly than difficult problems of construction. By tlie combined result of the decisions of a succession of judges, each bringing his mind to bear on the views of those who pre- ceded him, a system , of interpreta- tion is built up, which is likely to secure a much nearer approach to perfect justice than if each inter- preter were left to set up his own standard of how far it was right to go in supplying the defective expres- sion, or of Aihat amounted to a con- viction of the intent as distinguished from mere speculative conjecture. Utiles of construction are matters, the expediency of which may be more doubtful; but that priiiviplcs of con- struction tliiTc mu^t be in every sys- tem of rational interpretation, and that these are only to be gathered by a comparison of a large number of important cases, and by striking tlie average of a large number of individual minds, will not, I think, be denied by any one who considers interpretation to be, as I have de- scribed it, a process of reasoning from probabilities, a process of remedying, by a sort of equitable jurisdiction, 'be imperfections of human language and powers of using language, a proc- ess whose limits are neceRs;arily in- definite and yet continually requir- ing to be practically determined, — and not, as it is not, a mere opera- tion requiring the use of grammars and dictionaries, a mere inquiry into the meaning of words." ' The statutes relating to the sale of goods do not use this word, but a number of statutes relating to agree- ments in regard to land do. See § 100. "Bailey r. Sweeting, 9 C. B. I N. S.) 84.3; Wilkinson v. Evans, L. R. 1 C. P. 407; Buxton v. Rust, L. R. 7 Ex. 1, 273; Elliott v. Dean, Cab. & E. 28.3; Drury v. Young, 58 ild. 546, 42 Am. Rep. 343 ; Heideman v. Wolf- stein, 12 Mo. App. 366; Cash v. Clark, 61 Mo. App. 636; Spencer- Turner Co. r. Robinson, 55 X. Y. Misc. 280, 105 X. Y. Suppl. OS: Louisville Varnish Co. v. Lorick, 2& S. C. 533, 8 S. E. S; JIartin v. Hauh- ner, 26 Can. S. C. 142. See West- moreland V. Carson, 70 Tex. 619, 13 S. W. 559. "Moore r. Hart, 1 Vern. 110; Ay- liffe r. Tracy, 2 P. Wms. 65; Owen I'. Thomas, 3 Myl. & K. 353; Gibson V. Holland, L. R. 1 C. P. 1; :Mo9s r. Atkinson, 44 Cal. 3; Spangler i. Danforth, 65 111. 152; Wood r. Davis, 82 HI. 311; Gaines v. McAdam, 79 111. App. 201; Fugate r. Hansford's Ex., 3 Litt. 202 ; Kleeman r. Collins, 9 Bush, 400; Moore r. Mountcastle, 61 Mo. 424; Cunningham r. Wil- liams, 43 :\Io. App. 629; Cash r. Clark, 61 JIo. App. 636; Mizell r. Burnett, 4 Jones L. 249; Nicholson FOEMALITIES OF THE CoNTEACT. 127 plete, and written evidence of it alone is necessary. There seems no reason for doubting the sufficiency of an \mdelivered writing for this purpose and this view finds support in many cases. ^^ It has, however, been held in a number of cases, relating to real estate, that a document remaining wholly unpublished in the pos- session of the writer could not be used as a memorandum.-'^ A V. Dover, N. C. , 58 S. E. 444 ; Lee V. Cherry, 85 Tenn. 707, 4 S. W. 835, 4 Am. St. Rep. 800; Kearby v. Hopkins, 14 Tex. Civ. App. 166, 36 S. W. 506; Singleton f. Hill, 91 Wis. 51, 64 N. W. 588. But see the con- trary decisions : First Banlc v. Sowles, 46 Fed. Rep. 731; Steel v. Fife, 48 Iowa, 99, 30 Am. Rep. 388; Morrow V. Moore, 98 Me. 373, 57 Atl. 81, 99 Am. St. Rep. 410; Kinloch v. Savage, Speers' Eq. 464; Buck v. Pickwell, 27 Vt. 157, 167. "Alford V. Wilson, 95 Ky- 506, 26 S. W. 539 (land) ; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343 (goods) ; Johnson r. McCue, 34 Pa. St. 180 (agreement to devise). See also Wit- man V. Reading, 191 Pa. St. 134, 43 Atl. 140 (land). An undelivered deed under this rule is, therefore, a suf- ficient memorandum. Jenkins v. Har- rison, 66 Ala. 345; Johnson v. Jones, 85 Ala. 280, 4 So. 748; Griel v. Lomax, 89 Ala. 420, 6 So. 741; Hart V. Carroll, 85 Pa. St. 508; Bowles V. Woodson, 6 Gratt. 78 ; ParriU v. Mc- Kinley, 9 Gratt. 1, 58 Am. Dec. 212. See also Kopp v. Reiter, 146 111. 437, 34 N. E. 942, 22 L. R. A. 273, 37 Am. St. Rep. 156; Thayer v. Luce, 22 Ohio St. 62; Cooper v. Thomason, 30 Or. 161, 174, 45 Pac. 296; Camp- bell V. Thomas, 42 Wis. 437, 24 Am. Rep. 427; Popp t. Swanke, 68 Wis. 364, 31 N. W. 916. See also decisions holding corporation records sufficient, supra, § 101. " Remington v. Linthicum, 14 Pet. 84, 93, 10 L. ed. 364; Steel t. Fife, 48 Iowa, 99, 30 Am. Rep. 388; New- burger t'. Adams, 92 Ky. 26, 17 S. W. 1C2 (but see McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123; Alford v. Wilson, 95 Ky. 506, 26 S. W. 539) ; Dickinson v. Wright, 56 Mich. 42, 22 N. W. 312; Chesebrough v. Pingree, 72 Mich. 438, 40 X. W. 747; Johnson V. Brook, 31 Miss. 17, 66 Am. Dec. 547 ; Montauk Assoc, v. Daly, 02 N. Y. App. Div. 101; affd., without opinion, 171 N. Y. 059, 63 N. E. 1119; Grant r. Levan, 4 Pa. St. 393. See also Callanan r. Chapin, 158 Mass. 113, 117, 32 N. E. 941. Ac- cordingly in such jurisdictions an un- delivered deed is insufficient, not only as a conveyance, but as a memo- randum of a contract to convey. . Freeland v. Charnley, 80 Ind. 132, 134; Steel v. Fife, 48 Iowa, 99, 30 Am. Rep. 3SS; Logsdon v. Newton, 54 Iowa, 448, 6 N. W. 715; Morrow v. Moore, 98 Me. 373, 57 Atl. 81, 99 Am. St. Rep. 410; Merriam v. Leonard, 6 Cush. 151 ; Parker v. Parker, 1 Gray, 409; Ducett 0. Wolf, 81 Mich. 311, 45 N. W. 829; KroU v. Diamond Match Co., 113 Mich. 196, 71 N. W. 630; Comer v: Baldwin, 16 Minn. 172; Johnson r. Brook, 31 Miss. 17, 66 Am. Dec. 547; Wier r. Batdorf, 24 Neb. 83, 38 N. W. 22; Soward r. Moss, 59 Neb. 71, 80 N. W. 268; Schneider r. Vogler (Neb.), 97 N. W. 1018; Brown v. Brown, 33 N. J. Eq. 650; Cagger v. Lansing, 43 N. Y. 550; Allebach v. Godshalk, 116 Pa. St. 329, 9 Atl. 444. See also Henderson v. Beard, 51 Ark. 433, 11 S. W. 766; Swain v. Burnette, 89 Cal. 564, 26 Pac. 1093; Sullivan V. O'Neal, 66 Tex. 433, 1 S. W. 185. 128 Formation" op the Coi^'teact. somewhat similar question arises in regard to the sufBciency of a written offer to constitute a memorandum, for at the time that such a writing is made, the writer does not deliver the writing as then binding him, the obligation does not arise until the offer is accepted. The writing, therefore, cannot have been delivered as a memorandum of a contract. It is generally held that a written offer accepted by parol is a sufBcient memorandum."'* Under statutes which require the '' contract " to be in writing, a written offer has been held in some cases, not without reason, insufficient.^"' A written instruction to an agent to make an offer is not a sufficient memorandum of an oral contract which the agent thereafter makes in accordance with the instruction."''' The question already considered of acceptance and receipt made under a mistake may also be referred to for analogy in connection with the questions dealt with in this section." § 107. Separate documents — Physical attachment. — A memo- randum need not be contained in one writing; any number may be "Egerton i\Matliews, 6 East, 307 (goods) ; Jdoadly v. M'^aJne, 10 Bing. 48:2 (^oods) ; Reusa r. Picksley, L. R. 1 Ex. 342 (promise not to be per- formed within year) ; Stewart v. Ed- dowes, L. R. 9 C. P. 311 (goods) ; Gradle i. Warner, 140 111. 123, 29 N. E. 1118 (land) ; Doherty v. Hill, 144 Jlass. 465, 11 N. E. 581 (land) ; Lydig v. Braman, 177 Mass. 212, 218, 58 X. E. 696 (goods) ; Howe ('. Watson, 179 JIass. 30, 60 N. E. 415 (promise to will property) ; Austrian v. Springer, 94 jMich. 343, 54 X. W. 50, 34 Am. St. Rep. 350 (goods) ; Kessler i. Smith, 42 ]\[inn. 494, 44 N. W. 794 (goods) ; Waul v. Kirknian, 27 Jliss. 823 (promise to pay debt of another) ; Lash v. Parlin, 78 Mo. 391 (goods) ; Argus Co. !'. Albany, 55 N. Y. 495, 14 Am. Rep. 296 (promise not to be performed within a year) ; Mason (. Decker, 72 N. Y. 59.1, 28 Am. Rep. 190 (goods) ; Bri>tnl p. Jlente. 79 X. Y. App. Div. 67 (goods) ; Thayer r. Luce, 22 Ohio St. 62 (land) ; Himrod Co. r. Cleve- land Co., 22 Ohio St. 451 (promise not to be performed within a. year) ; Lee i-. Cherrj', 85 Tenn. 707, 4 S. W. 835, 4 Am. St. Rep. 800 (land); Bailey r. Leishman, L'tali, , 89 Pac. 78 (goods) ; Lowber v. Connit, 36 Wis. 176 fland) ; Hawkinson v. Harmon, 69 Wis. 551, 35 N. W. 28 (goods). But see contra, Banks v. Harris Mfg. Co., 20 Fed. Rep. 667 (goods) ; Cable Co. i. Hancock, 2 Ga. App. 73, 58 S. E. 319 (goods) ; American Leather Co. v. Porter, 94 Iowa, 117, 62 X'. W. 658 (goods). '= Xewlin v. Hoyt, 91 Minn. 409, 98 X. W. 323; Kingman c. Davis, 63 X'eb. 578, 88 N. W. 777; Spence r. Apley (Xeb.), 94 N. W. 109; Mon- tauk Assoc, r. Daly, 62 X. Y. App. Div. 101; affd., without opinion, 171 X. Y. 659, 63 X. E. 1119. All these decisions relate to land. "Carskaddon r. South Bend, 141 Ind. 596, 39 X. E. 667, 41 N. E. 1; Haw r. American Xail Co., 89 Iowa, 745, 56 X. W. 501. " See supra, § 83. FOEMALITIKS OF THE CoNTEACT. 129 taken together to make out the necessary written expression of the terms of the bargain provided there is sufficient eonmectioii made out between the papers without the aid of parol evidence further than to identify papers to which reference is made. This connection may be made out either from the physical attach- ment^^ of the different papers at the tiiiie of signature, or by reference. Thus ; if documents ai-e pinned together it is enough.''^ So a letter and the envelope in which it was sent may be taken together and the envelope used to show the name of the person to whom the letter was addi-essed when that name did not appear in the letter itself.^" So a memiOTandum in a book which does not contain the name of the seller is sufficiently connected with a leather cover upon which the seller's name is stamped, to allow the name to be treated as part of the memorandum.^^ So a writ- ing indorsed upon the back of another may be taken as part of it.^^ A more extreme case is suggested in am English decision f a ■*» Fisher v. Kuhn, 54 Miss. 480, 483 (land) ; Coe i: Tough, 116 N. Y. 273, 277, 22 N. E. 550 (goods) ; and i;asea cited in the following notes. "Tallman v. Franklin, 14 N. Y. 584 (land) . See also Busch v. Hart, 62 Ark. 330, 35 S. W. 534 (written contract not within statute). ^"Pearce v. Gardner, [1897] 1 Q. B. 688. In Coe v. Tough, 116 N. Y. 273, however, where two decuments were- put in the same envelope the court, though holding the papers could be read together because of reference of one to the other, did not mention the inclusion of the papers in the same envelope as a reason for its holding. ^1 Jones V. Joyner, 82 L. T. (N. S-.) 768. "Jelks V. Barrett, 52 Miss. 315 (land). See also Gage v. Cameron, 212 111. 146, 172, 72 N. E. 204. The contrary Was decided in Wilstach v. Heyd, 122 Ind. 574, 23 N. K. 963, fol- lowing Ridgway v. Ingram, 50 Ind. 14.5, 19 Am. "Rep. 706. In these Indiana cases the face of the memoraTidum con- tained no description of the property, but a. description was indorsed on the back. This was held insufficient on tlie ground that an indorsement was no better than a separate paper, and if it contained no reference to the face could not be used. The de- cisions seem clearly wrong. Of' course, if a signed indorsement refer to the face of the document there can be no difficulty in reading the two to- gether. Flowers r. Steiner, 108 Ala. 440, 19 So. 321 (contract of married woman) ; Thomas v. Drennen, 112 Ala. 670, 20 So. 848 (land) ; Corning V. Loomis, 111 Mich. 23, 69 N. w. 85 (land) ; Tunstall r. Cobb, 109 N. C. 316, 14 S. E. 28 (land). ^ Kenworthy v. Sehofield, 2 B. & C. 945. " It occurred to me at first that this might be lilcened to the case of a will consisting of several detached sheets, when a signature of the la-st, tlie whole being on the table at the time, would be considered a signing of the whote; but there the sheet signed is a part of the whole," The 130 FOEMATION OF THE CoNTEACT. signature to one of several sheets whicli are together at the time but not in any way united. It seems doubtful whether both papers could be used in such a case, though if both sheets were put in one envelope possibly that would be a sufficient connection between them. § 108. Separate documents — Incorporation by reference. — Where there are several documents not physically attached to each other, it may be supposed either that all the documents which it is desired to use are signed by the party to be charged or that some are unsigned. In the former case the rule seems to be that all the papers which show by their contents a connection with the bargain sought to be enforced may be taken together though I the writinff^do not refer to each other.^* Parol evidence is not admissible, however, to show that even signed writings relate to the same transaction.^^ Where some of the papers which it is sought to include are unsigned, it is sometimes said that one paper must refer to the other, or that there must be mutual reference,^® but this is inaccurate. What is essential is that the signature of the party to be charged shall authenticate the whole of the writing. It is, therefore, necessary to incorporate all the documents into a signed writing. It will not be enough to incorporate all into an unsigned writing, and it is, therefore, 'insufficient and immaterial that the unsigned writing refers to the signed writing. What is necessary, then, is that a signed writing refer to all unsigned writings that are sought to be case decided that the signature of an be performed within a year) ; Boeck- auctioneer in his book was not suffi- eler r. JfcOowan. 12 Mo. App. .jii7 ciently connected with the conditions (land! ; Lrvin v. Dietz, 4S X. Y. of the sale contained in another docu- Misc. Rep. 593, 96 N. Y. Suppl. 468; ment, and being ir the same room, Thayer v. Luce, 22 Ohio St. 62 since there was no reference in the (land) ; Browne, Statute of Frauds, book to the memorandum. See contra § 348. (erroneously), McBrayer r. Cohen, 92 ^= Jacob v. Kirk, 2 M. & R. 221 Ky. 479, IS S. W. 123. (goods) ; Potter v. Peters, 64 L. J. " Studds r. "Watson, 28 Ch. D. 305 Ch. (N. S.) 357 (land); Rahm v. (land) ; Oliver r. Hunting, 44 Ch. D. Klerner, 99 Va. 10, 37 S. E. 292 205 (land) ; Brewer v. Horat-Lack- (contract not to be performed within mund Co., 127 Cal. 643, 60 Pac. 418, a year). 50 L. E. A. 240 (goods); Biest r. "» Devine v. Warner, 76 Conn. 229, Versteeg Shoe Co., 97 Mo. App. 137, 56 Atl. 562. 156, 70 S. W. 1081 (contract not to FOEMALITIES OF THE CONTRACT. 131 made a part of the memoraiidum.^^ It is not important in what language reference is made; it is certainly enough if a plain reference is made by a document signed by the party to be charged whatever its nature to any other writing.^^ The question of identifying by parol evidence a document referred to in a signed writing is entirely analogous to the questions dis- '' Wilkinson v. Taylor Mfg. Co., 67 Miss. 231, 7 So. 350; Donovan v. Schoenhofen Brewing Co., 92 IIo. App. 341, 348; Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243; Coe V. Tough, 116 N. Y. 273, 277, 22 N. E. 550; Thayer v. Luce, 22 Ohio St. 62. The case last cited was a. suit for specific perfornaance of a contract to sell land. The original memorandum contained no description of the prop- erty, and the plaintiff relied also on a deed which was signed but not de- livered. Mcllvaine, J., in delivering the opinion of the court, said: " That several writings, though executed at different times, may be construed to- gether, for the purpose of ascertain- ing the terms of a contract and for the purpose of taking an action founded thereon out of the operation of the Statute of Frauds, is fully set- tled. 3 Taunt. 109; 1 Bing. 8; 3 Myl. t K. 353; 14 How. (U. S.) 447; 14 N. Y. 584. In such cases, how- ever, the mutual relation of the sev- eral writings to the same transaction must appear in the writings them- selves, parol evidence being inadmis- sible for the purpose of showing their connection. If one only of such papers be signed by the party to be charged in the action, the rule seems to be that special reference must be made therein to those papers that are not so signed; but if the several papers relied on be signed by such party, it is sufficient if their connec- tion and relation to the same trans- action can be ascertained and deter- mined by inspection and comparison. In this case, upon inspection and comparison of the memorandum and the deed, although no reference is made in either to the other, we find with reasonable certainty that they do relate to the same transaction, and contain fully the terms of a con- tract of bargain and sale between the parties. The coincidences of names, dates, amount of purchase money, and reference to and description of frac- tional lots, are quite sufficient. But when these coincidences are con- sidered in connection with the aver- ments and admissions in the plead- ings, and the res gestw, we arrive at a degree of certainty far beyond that which is required in determining civil issues." '"Griffiths Cycle Co. v. Humber, [1899] 2 Q. B. 414; Drovers Bank v. Albany Bank, 44 Fed. Kep. 183 (guar- antee) ; Woodruff v. Butler, 75 Conn. 079, 55 Atl. 167 (land) ; Tippins v. Phillips, 123 Ga. 415, 51 S. E. 410 (land) ; Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, 62 Am. St. Eep. 345 (goods) ; North v. Mendel, 73 Ga. 400, 54 Am. Eep. 879 (goods) ; Wills V. Boss, 77 Ind. 1, 40 Am. Kep. 279 (guarantee) ; Savage v. Robinson, 93 Me. 262, 44 Atl. 926 (guarantee) ; Olson V. Sharpless, 53 Minn. 91, 55 N. W. 125 (goods) ; Swallow i: Strong, 83 Minn. 87, 85 X. W. 942 (land) ; Waul v. Kirkman, 27 Miss. 283 (land) ; Fisher r. Kuhn, 54 Miss. 480, 483; Fowler Elevator Co. v. Cottrell, 38 Neb. 512, 57 N. W. 19 (goods) ; Hiokey v. Dole, 66 N. H. 336, 31 Atl. 900, 49 Am. St. Rep. 614 (land). 13: FoEilATION OF THE CoXTEACT. cussed abore,"" in regard to the necessary certainty of description of the parties, subject-matter, and terms of the contract. While ooasionally expressions maj' be found that parol evidence is not admissible to identify a document so referred to, this is erroneous both on principle and authority.^" It has been decided in a single case,^'' that a reference to a paper hereafter to be made was suffi- cient to incorporate the paper when thereafter made before the bringing of the action. It may be doubted, however, whether the court did not place its decision upon too broad a ground. Cer- tainly a memorandum signed by the party to be charged to this effect: " I, A., will sell B. the goods we may write on a paper to-morrow, at the prices we shall thereto affix," should not be good. Assuming the subsequent paper to be made, it is not authenticated by the signature of A., and this is a requirement of the statute.®^ "' § 105. '° Bauman v. James, L. R. 3 Ch. 508 ; Long v. Millar ( C. A. ) , 4 C. P. D. 450; Oliver v. Hunting, 44 Ch. D. 205; Becliwith v. Talbot, 95 U. S. 289, 24 L. ed. 496; Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, 02 Am. St. Rep. 345 ; Ansley v. Green, 82 Ga. 181, 7 S. E. 921; Wilkinson i'. Taylor Mfg. Co., 67 Misa. 231, 7 So. 356; Gough c. Williamson, 02 X. J. Eq. 526, 50 Atl. 323. In Beckwitli v. Talbot, ill. Justice Bradley said: " It is undoubtedly a, general rule that collateral papers adduced to sup- ply the defect of signature of a writ- ten agreement under the Statute of Frauds should on their face suffi- ciently demonstrate their reference to such agreement without the aid of parol proof. But the rule is not absolute. Johnson v. Dodgson, 2 :\I. & W. 653 ; Salmon Falls Mfg. Co. r. Goddard, 14 How. 440, 14 L. ed. 493. There may be cases in which it wo\ild be a violation of reason and common sense to ignore a. reference which derives its significance from such proof. If there is ground for any doubt in the matter, the general rule should be enforced. But where there is no ground for doubt, its en- forcement would aid, instead of dis- couraging fraud. Suppose an agree- ment be made out and signed by one of the parties, the other being absent. On the following day, the latter writes to the party who signed it as follows : ' My son informs me that you yesterday executed our proposed agreement, as prepared by J. S. I write this to let you know that I recognize and adopt it." Would not this be a sufficient recognition, espe- cially if the parties should act under the agreement? And yet parol proof would be required to show what agree- ment was meant." "'Freeland r. Ritz, 154 Mass. 257, 28 X. E. 226, 12 L. R. A. 561, 26 Am. St. Rep. 244 (land). ^- In Freeland v. Ritz, the defendant agreed to take a, lease of a portion of a. building from the plaintiff who was to receive, but had not yet received, a lease of the whole building from its owner, a third person. The defendant agreed to take a lease of the portion of the building for which he was bar- gaining, subject to the terms and con- ditions of the lease thereafter to be made to the plaintiff. It is submitted Formalities of the Contbact. 133 It should be further noticed that even if a signed paper does refer to an unsigned paper it may do so in such a way as will not in- corporate the contents of the latter under the signature of the former. Thus A.'s letter may refer to B.'s which contains an accurate statement of the contract, but if A.'s letter repudiates B.'s- statement of the contract A. has certainly not signed such a memo- randum as the statute requires. Indeed, A.'s letter must not: only refer to B.'s, but by implication at least indicate assent to the accuracy of B.'s statement in order that A. should be: bound.^^ § 109. Separate documents — Incorporation by necessajry infers ence, — Until comparatively recently the authorities did not extend the right tO' make out a memorandum from separate documents-, some of which were unsigned, beyond the case of refference by a signed document to an unsigned. Both in England and in this- country, however, an extension has been made by some decisions. The basis of these decisions is either that the documents on being placed together necessarily indicate that they relate to the same- transaction, or that they contain an express reference to a specific contract or sale although not to each other. The leading case for the former doctrine is Lerned v. Wannemacher.^* This decision may be taken as a type of all. There were two documents nearly identical, one signed by each party. The copy signed by the de- fendant, however, did not contain the name of the plaintiff, and the other had a special stipulation afterward written and signed that tliis memorandum of the defend- waa nothing for further agreement ant would have been good if it had between them. See Bowers v. Ocean referred to a future oral bargain be- Accident, etc., Corp., 110 K Y. App. tween the plaintiff and a third person. Div. 691, 694, 97 N. Y. Suppl. 485. Suppose A. agrees to buy goods of B. In the supposititious case put in the at the price which B. has to pay C. text, on the other hand, the parties for them, or on the same terms and had not come to a. full agreement conditions that B. has to make with when the party to be charged signed. C. Such a memorandum contains the In such a case it seems hard to see whole of the bargain between A. and how the signature, unless newly B., and ought to satisfy the Statute adopted in some way, can authenti- of Frauds, irrespective of whether B.'s cate the subsequent writing, arrangement with C. was oral or " Wilson v. Lewiston Mill Co., 150 written. In the case just put as well N. Y. 314, 44 N. E. 959, 55 Am. St. as in the Massachusetts decision, the Rep. 680. parties made a full memorandum of " 9 Allen, 412. all the terms of their contract; there 134 FOEJIATION OF THE CoNTEACT. by the plaintiff. The court held that as the documents evidently related to the same transaction, the signature of the defendant would be taken as applicable to both. This case has been followed by others to the same effect,"^ and the doctrine has been applied especially to correspondence between the parties. It seems to be supposed by many courts that where parties have a correspondence in regard to any matter 4b«Hr the whole correspondence, including the letters of both parties, can necessarily be made use of in order to make out a memorandum, at least if the letters relate to the same subject-matter.^" In the case of letters, reference is gen- erally made Ijy each succeeding letter to the preceding, but this is not invariably the case, and in a telegraphic correspondence it is perhaps not common. ^'^ It seems impossible to justify this ex- tension of the doctrine in regard to several documents. There "White r. Breen, 106 Ala. 159, 19 So. 59, 32 L. E. A. 127 (land) ; Strouse r. Elting, 110 Ala. 132, 20 So. 123 (guarantee) ; McBrayer r. Cohen, 92 Ky. 479, 18 S. W. 123 (land) ; Smith r. Colby, 136 Mass. 562 (goods) ; Freeland v. Ritz, 154 Mass. 257, 28 N. E. 22C, 12 L. R. A. 661, 26 Am. St. Rep. 244 (land); Louisville Varnish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8 (goods). See also Leonard v. ^^'oodruff, 23 Utah, 494, 65 Pac. 199 (land). "Ryan r. United States, 136 U. S. 68, 83, 10 S. Ct. 913, 34 L. ed. 447; Crystal Flouring Co. v. Butterfield, 15 Colo. App. 240, 61 Pac. 479 (goods) ; Elbert r. Los Angeles Gas Co., 97 Cal. 244, 32 Pac. 9 (contract not to be performed within a year) ; Austin v. Davis, 128 Tnd. 472, 476, 26 N. E. 890, 12 L. R. A. 120, 25 Am. St. Rep. 456 (contract to make will) ; Tliames Trust Co. !'. Beville, 100 Ind. 309 (land) ; Swallow v. Strong, S3 ilinn. 87, 85 X. W. 942 (land) ; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511 (goods) ; Peay r. Seigler, 48 R. C. 496, 26 S. E. 885, 59 Am. St. Rep. 731 ; Watson i;. Baker, 71 Tex. 739, 9 S. W. 867 (land) ; Cobb v. Glenn Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734. Most of these decisions v,eTe doubtless correct upon their facts, because the letters of the defendants referred to the let- ters of the plaintiffs, which it was sought to incorporate with them. In Watson V. Baker, 71 Tex. 739, 9 S. W. 867, however, this was clearly not the case. The only letter which contained a description of the prop- erty, though it did not contain the ultimate bargain of the parties, was neither written by the party sought to be charged nor referred to in any of his subsequent correspondence, yet the coi^rt admitted it as part of the correspondence, saying broadly : " It is sufficient if the contract can be plainly made out in all its terms from any writing of the party or from his correspondence." " See Brewer r. Horst-Lachmund Co., 127 Cal. 643, 60 Pac. 418, 50 L. E. A. 240; Cobb v. Glenn Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734, and many decisions collected in 50 L. R. A. 240, note. Formalities of the Conteact. 135 is no difficulty in making out a written memorandum that evi- dently relates to the same transaction, but the memorandum is not signed by the party to be charged, — a simple illustration will in- dicate this. A. writes a letter to B., saying: " I will sell you the property of which we spoke yesterday for $5,000 cash." B. re- plies : " I understand that you will sell me the following de- scribed property of which we spoke yesterday (describing the property) at $5,000 cash. I hereby accept your proposition." According to the doctrine here criticised B.'s reply could be read with A.'s letter to charge A. ; they evidently refer to the same transaction, and the description of the property contained in B.'s letter could be incorporated in A.'s writing. But it is obvious that A. has never authenticated the description by his signature, and to allow the description written by B. to be used by B. in enforc- ing the contract against A., is nothing other than to allow B. to write an essential term of the memorandum himself and charge A. with it as written.^* It is, however, permissible to use so many of the letters of the party to be charged as evidently relate to the same transaction, irrespective of any reference in them to one another, provided they are all signed.^^ It is not enough, therefore, that there be a continuous correspondence between the parties. It is essential to examine specifically the papers not signed by the parties to be charged, which it is sought to incor- porate with the paper or papers that are so signed, and determine whether the unsigned papers have been adopted by the signed papers.*" The only extension of the doctrine requiring an express reference in the signed papers that seems permissible is where the signed paper at the time of the signature can be shown from its contents to be based on an adoption of a then existing unsigned paper." "This case is suggested by the de- N. E. 959; Darling !>. Gumming, 92 cision of Watson v. Baker, 71 Tex. Va. 521, 23 S. E. 880. Devine i;. 739, 9 S. W. 867. Compare the cor- Warner, 76 Conn. 229, 56 Atl. 562, rect decision of Wilson v. Lewiston also supports the requirements sug- Mills Co., 150 N. y. 314, 44 N. E. gested by the text but goes still gjg farther (without justification) in re- " See supra, § 108. quiring a. mutual reference between "This doctrine is upheld by Fow- the papers. ler Elevator Co. v. Cottrell, 38 Neb. "This is well illustrated by a re- 512, 57 N. W. 19 (goods) ; Brown v. cent New Jersey decision, Baldwin Whipple, 58 N. H. 229; Wilson v. v. Trowbridge, 62 N. J. Eq. 468, 50 Lewiston Mill Co., 150 N. Y. 314, 44 Atl. 494, where a check signed by the 136 Fobmatiojn" of the Cokteact. § 110. Sep,arate dx)cumeiits — Reference to the same transaction. — Recent English eases have adopted a doctrine going quite as far as the doctrine criticised in the preceding section. AA'here a signed document refers to the transaction in question an un- signed memorandum describing the transaction has been treated as incorporated therewith.^^ One or two similar decisions have been made in this country.*" Such decisions go beyond what seems permissible, for the signature of the party to be charged does not authenticate an unsigned memoraxidum of the purchase merely because the sigTied paper makes some reference to the purchase. The signature vouches for the fact that there was a purchase, but it does not vouch for the terms of the purchase as described in the unsigned paper.** § 111. Consistency of separate documents. — It is sometimes said defendant wag held to establish a memorandum of a trust. The amount of the check was taken from entries in an account-book kept by the book- keeper of the defendant, the party to be charged, and the entries contained the data necessary for a memo- randum. It is reasonably clear that the maker of a clieck by making it for tlie amount indicated in the ac- ccrant-book authenticated with his signature the entries in the book. "Long r. Millar (C. A.),4 C. P. D. 450. The defendant signed the fol- lowing receipt: " Eeceivcd of Mr. George Long the sum of thirty-one pounds as n deposit on the purchase of three plots of land at Hammer- smith. £31 0. Chas. W. Millar." The plaintiff was allowed to treat as incorporated in this receipt a memo- randum of the purchase which had been signed by him on the same day, and which contained the full terms of the bargain. It will be noticed that the receipt does not refer to a docu- ment at all, but refers to a transac- tion. See also Studds !'. Watson, 28 Ch. D. 305; Oliver r. Hunting, 44 Ch. D. 205, where, however, both papers were signed by the parties to be charged. "Smith r. Colby, 130 Mass. 562. In this case these words in the paper- signed by the defendant, " L'pon the terms agreed upon when at your place," were held sufficient to enable the plai-ntiff to make use of a memo- randum of those terms. Compare Beckwith v. Talbot, 95 V. S. 289, 24 L. ed. 496. In this case a signed paper referred to a previous " agree- ment." It was held that u. previously written agreement was thereby incor- porated by the signed paper. This decision seems sound for the word ■■ agreement " seems to have referred to this writing rather than to the oral agreement of which the writing was the evidence. McBraver v. Cohen, 92 Ky. 479, 18 S. W. 123, is still more open to the criticism made in the text. " This view is supported by Darling V. Cumming, 92 Va. 521, 23 S. E. 880. The words " according to an un- derstanding between us " were held an insufficient reference to an un- signed paper containing a statement of the bargain between the parties. FOEMALITIES OF THE CoNTEACT. 137 that separate papers coastitnting a memorandum must be con- sistent with each other in order to be used.*^ Reflection shows that there are obvious limits to any such principle. In the first place it is necessary to distinguish between a written contract and a memoraaidum of an. oral contract. If each of tsvo imconsistent writings purports to be a written contract a difficulty arises which has no relation to the Statute of Frauds, but has to do either with lack of mutual assent or a mistaken expression thereof. If there was lack of mutual assent, which woTild happen if one party in- tended one form and so expressed himself, and the other party an- other form and so expressed himself, there is no bargain.*'^ If on the other hand one form of expression was that which the parties intended and the other form was caused by mistal^e, the case is one for equitable reformation of the incorrect instrument and as a court of law could reach the same result by giving effect to the accurately expressed writing and disregarding the other, it is probable that it would do so. If, however, writings which are merely memoranda of the contract are inconsistent, no such diffi- culty arises. If one or more papers express accurately the oral bargain of the parties, it is obviousty no valid ground of objection that there are other papers in existence which express the bargain inaccurately. The statute requires nothing more than one ac- curate memorandum ; if that exists the statute is satisfied.*^ As parol evidence is always admissible to show that a memorandum, which is not a written contract, does not accurately express the bargain,^* it must be equally admissible to show that a writ- ing is an accurate memorandum. The decisions which are cited in support of the requirement of consistency for the most part go no farther than this. A signed paper, incomplete in itself and professing to incorporate into itself another paper also in- sufficient in itself, must incorporate the latter paper in its entirety. If this will result in a writing repugnant in its terms the papers cannot be a memorandum..*^ "Benjamm, Sale (5th Eng. ed.), "See supra, § 104. 244; Meelrem, Sales, § 427. "In C!ooper v. Smith, 15 East, 103, *° Thornton v. Kempater, 5 Taunt. a letter of the defendants wa.s songlit 786. to be used in connection with an "'See Morton !'. Clark, 181 Mass. entry in the plaintiff's books, but the 134, 63 N. E. 409; o. v., 184 Mass. letter was inconsistent with the 555, 69 N. E. 309. books. In this case neither document 138 Formation of the Conteact. § 112. Signature. — All sections, both of the English and Ameri- can statutes, require signature. It was early held that this did not mean a signature at the end of the writing, and there is no doubt that a signature may be put at any place in the writing unless the statute expressly requires subscription.*" Some of these decisions have gone verj' far in holding a name written in the memorandum to be a signature when there seemed little to indicate that the name was written for the purpose of signing or authenticating the writing, and the English court, following such decisions to their logical conclusion, has recently held "that a signature to a docu- ment which contains the terms of a contract is available for the purpose of satisfying the statute though put alio intuitu and not in order to attest or verify the contract " ^^ ISTo decisions in this country have gone to this extreme length.*^ In Kew York and some other States the statute has been changed from the English model so far as to require that the signature be " subscribed." Under a statute in this form there can be no doubt that the signa- was a complete memorandum and the letter did not adopt and incorporate the entry in the books. This is the whole ground of the decision. To the same effect is Smith v. Surman, 9 B. &, C. 561, where a letter from the defendant was held not to incorporate with itself a previous letter from the plaintiff's attorney which it contra- dicted. See also Buxton r. Rust, L. E. 7 Ex. 1, 279; Haughton v. Morton, 5 Ir. C. L. 329. See also infra, § 116. °° Lemayne r. Stanley, 3 Lev. 1 ; Knight II. Crockford, 1 Esp. 190; Holmes !'. Mackrell, 3 C. B. (N. S.) 789; Barry i;. Coombe, 1 Pet. 640, 7 L. ed. 29.5 ; Nichols v. .Johnson, 10 Conn. 192; McConnell v. Brillhart, 17 111. 354, 65 Am. Dec. 661; Drury v. Young, 58 Md. 540, 42 Am. Rep. 343 Penniman v. Hartshorn, 13 ilass. 87 Hawkins p. Chace, 19 Pick. 502 Traylor v. Cabannf, 8 Mo. App. 131 Merritt v. Clason, 12 Johns. 102, 7 Am. Dec. 286 ; Tingley v. Bellingham Co., 5 Wash. 644, 32 Pac. 737, 33 Pac. 1055 ; Anderson r. Wallace Lum- ber Co., 30 Wash. 147, 70 Pac. 247. "Griffiths Cycle Co. v. Humber, [1899] 2 Q. B. 414, 418; Jones v. Victoria Dock Co., 2 Q. B. D. 314. Compare Hucklesby v. Hook, 82 L. T. 117. "' In Boardmau i\ Spooner, 13 Allen, 353, 358, the court said : " The stamping of the purchasers' name and a date on the bill and memorandum of weights at some time while these papers were in their possession, with- out evidence when or for what pur- pose this was donej did not show that they had adopted such a stamp as a signature, and affixed it to the instru- ments with the intent to bind them- selves thereby." So in Kling v. Bord- ner, 65 Ohio St. 86, 100, 61 X. E. 148, the court said : " No special formality in the execution of the writing is necessary, provided, as held in Anderson v. Harold, 10 Ohio, 399 it is signed for the purpose of giving it authenticity as an agree- ment." Formalities of the Cokteact. 139 ture must be at the end of the writing.'^ The signature may be in an abbreviated form, as by the use of initials,*^* or the first name only.^' The signature may be by mark,''* or any code sign which may be adopted by the writer. °^ The signature may be made in pencil,^^ or rubber stamp,^^ or a printed signature already on the paper may be adopted. *° There seems no reason to doubt the sufficiency of a description of the party to be charged if it is written with intent to attest or verify the writing.''^ The case of a signature in blanlv coupled with authority, afterward exercised, to fill in over the signature a contract within the Statute of Frauds, has been discussed in a few cases not wholly harmonious."^ "Coon V. Eigden, 4 Colo. 275; Davis V. Shields, 26 Wend. 341; James v. Patten, 6 N. Y. 9, 55 Am. Deo. 376; Doughty v. Manhattan Brass Co., 101 N. Y. 644, 4 N. E. 747. "Salmon Falls Mfg. Co. v. God- dard, 14 How. 446, 14 L. ed. 493; Sanborn v. Flagler, 9 Allen, 474. "Zann V. Haller, 71 Ind. 130, 36 Am. Rep. 193; Walker v. Walker, 175 Mass. 349, 56 N. E. 601. See also Fessenden v. Mussey, 11 Cush. 127. "George v. Surrey, 1 M. & M. 516; Baker v. Dening, 8 A. & E. 94; Selby ■u. Selby, 3 Meriv. 2, 6; Dyas v. Staf- ford, 9 L. R. Ir. 520 ; Foye v. Patch, 132 Mass. 105 ; Zimmerman v. Sale, 3 Rich. 76; Brown o. McClanahan, 9 Baxt. 347. " Brown v. Butcher's Bank, 6 Hill, 443, 41 Am. Dec. 755. In this case, the figures " 1, 2, 8," were written on the back of a bill, and held sufficient to bind the writer as an indorser. "Geary v. Physic, 5 B. & C. 234; Merritt v. Clason, 12 Johns. 102, 7 Am. Dec. 286; Clason v. Bailey, 14 Johns. 484; Draper v. Pattina, 2 Speers, 292. " Bennett v. Brumfitt, L. R. 3 C. P. 28 ; Deep River Bank's App., 73 Conn. 341. 47 Atl. 675. " Schneider v. Norris, 2 M. & S. 286 ; Sa underson v. Jackson, 2 B. & P. 238; ]5rury v. Young, 58 Md. 546, 42 Am. Rep. 343 ; Grieb v. Cole, 60 Mich. 397, 27 N. W. 579, 1 Am. St. Rep. 533. "In Selby v. Selby, 3 Meriv. 2, a signature to a letter in the words " your affectionate mother," was held to be insufficient, but the case seems rightly criticised in Browne on the Statute of Frauds, § 362. The words were undoubtedly written with the in- tent of signing the letter, and the de- scription is far more adequate for the purpose of identifying the writer than initials or marks used as a private code. "= In Ulen v. Kittredge, 7 Mass. 233, it was held that a guarantee might be filled in by a holder of a promis- sory note above the signature of the defendant indorsed on a note, the cir- cumstances implying authority so to do, and that when the guarantee was so written in, the Statute of Frauds was satisfied. A similar decision was made in Underwood v. Hossack, 38 111. 208. In Blacknall v. Parish, 6 Jones Eq. 70, an incomplete deed left with the grantor's agent was with the grantor's authority completed by his agent by filling in the name of the grantee. It was held that while this document when delivered by the agent 140 FOEJIATION OF THE CoNTEACT. On principle it seems clear that as a party may authorize an agent to make a memorandum entirely and sign it either with the principal's naurie or with the agent's, feh « t he may also authorize an agent to make a portion of a memorandum, that is, to fill in blanks. After the agent has thus exercised his authority the memorandum should certainly be as effectual as if he had made it altogether. The principal is not willing to trust him to the extent of the whole memorandum but directs him to make use for the purpose of a specified signature and perhaps other written por- tions of a memorandum.®^ Where attempt is made to authorize the other party to the contract to fill in the blanks an insuperable- difficulty arises. As will be seen,*'* one party to a contract can- not make the other his agent to execute a memorandum. An agency to fill in blanks seems in effect the same thing. At the time the signature is made it does not authenticate the memoran- dum and unless the blanks are filled in by some one, himself capable of signing the document effectually, so that his adoption of the signature already there may be regarded as a signing at that time, there can be no signed memorandum. The question in regard to the correction of a memorandum is similar. Anybody but the other party to the contract may be authorized to correct an existing memorandum, but the other party on principle may not.^" § 113. "By the party to be charged."— The English statute originally read^ " parties to be charged." The singular, "party," has been generally used in this coimtry, and in the English Sale of Goods Act the singular also is used, as it has been in the Sales. was not a good conveyance, it was a 6 Jones Eq. 70, referred to in th» good memorandum of a contract to preceding note, is satisfactorily ex- convey. On the other hand in Hodg- jilained on this ground. In Ayres r. kins f. Bond, 1 N. H. 284, 287, it Probasco, 14 Kans. 175, the same re- was held that a guarantee written pult might have been reached in re- over a blank signature on the back gard to a mortgage except that by of a, promissory note did not make a the law of Kansas the authority of good memorandum. The same was an agent to convey land must be in held in Jackson v. Titus, 2 Johns. writing. 430, in regard to an assignment in "See infra, {! 114. blank of an interest in land after the •" In Bluck v. Gompertz, 7 Exch. 862, blanks had been filled in. 869, a memorandum of guarantee of "The case of Blacknall v. Parish, two bills for £200 and £146, re- Formalities op tiie Conteact. 14:1 Act. No stress seems to have been laid on whether the singular or plural number was used, and it is well settled that in contracts for the sale of goods the memorandum need be signed only by the defendant, whether the defendant be buyer or seller.*^^ A contrary Tule in some States in regard to contracts for the sale of land need b© referred to only in passing.*'^ It should be observed that the requirement of only the defendant's signature has nothing to do spectively, had been signed by the de- fendant. It was later found that the amount for which the second bill should be drawn was £150, and it was so drawn. The bills were de- livered by the guarantor to the cred- itor (who later became plaintiff in the case ) , and upon delivering them the guarantor wrote across the face of his guarantee for the plaintiff's signature an acfcnowledgmeut of the receipt of " the two drafts (one be- ing for £150 instead of £146, there being an error in the invoice of £4 ) ." The plaintiff signed this receipt. It was held that the words of the re- ceipt written by the defendant might be regarded as authenticated by his previous signature of the .guarantee, although the words of the receipt were not written with the intent of being signed by the defendant. The decision seems sound, for there is no doubt that the words of the receipt were written by the defendant on the guarantee itself, at least in part for the purpose of making a correction in the earlier writing, which he himself had signed. "Allen V. Bennet, 3 Taunt. 169 (goods) ; Thornton v. Kempster, 5 Taunt. 786, 789 (goods) ; Laythoarp V. Bryant, 2 Bing. N. C. 735 (land) ; Cavanaugh v. Casselman, 88 Cal. 543, 26 Pac. 515 (land) ; Easton v. Mont- gomery, 90 Cal. 307, 27 Pac. 280, 25 Am. St. Rep. 123 (land) ; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87 (land) ; Perkins v. Had- sell, 50 111. 216 (land) ; Shirley v. Shirley, 7 Blackf. (Ind.) 452 (land) ; Burke v. Mead, 159 Ind. 252, 64 N. E. 880 (land) ; Engler v. Garrett, 100 Md. 387, 59 Atl. 648 (land); Wil- liams V. Eobinson, 73 Me. 186, 40 Am. Rep. 352 (goods) ; Old Colony R. R. Corp. V. Evans, 6 Gray, 25, 66 Am. Deo. 394 (land) ; Morin v. Martz, 13 Minn. 191 (goods) ; Ivory V. Mttrphy, 36 Mo. 534 (land) ; Cun- ningham V. Williams, 43 Mo. App. 629 (goods) ; Moore t;. Thompson, 93 Mo. App. 336, 348, 67 S. W. 680 (con- tract not to be performed within a year) ; Gartell v. Stafford, 12 Neb. 545, 11 N. W. 732, 41 Am. Rep. 767 (land) ; Sabre v. Smith, 62 N. H. 663 (goods) ; Clason v. Bailey, 14 Johns. 484 (goods) ; McCrea v. Purmont, 16 Wend. 460, 30 Am. Dec. 103 (land) ; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576 (goods) ; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190 (goods) ; Lord v. Cronin, 154 N. Y. 172, 47 N. E. 108S (land) ; Case Threshing Machine Co. V. Smith, 16 Or. 381, 18 Pac. 641 (goods) ; Douglass v. Spears, 2 Nott & McC. 2C7, 10 Am. Dec. 588 (goods) ; Dyer v. Winston (Tex. Civ. App.), 77 S. W. 227 (land). "A few States because of the form of the statute, or for other reasons, require that in contracts for sale of land the vendor shall sign the memo- randum. See 3 Parsons on Contracts (9th ed.), 10, note. 142 FOEMATION OF THE CoNTEACT. with the questions previously treated,^^ whether the names of both parties to the bargain must appear or whether the consideration furnished by the plaintiff either by way of counter-promise or exe- cuted consideration must be stated in the memorandum.*^^ § 114. Or his agent in that behalf. — The original statute al- lowed signature by an agent and this has been universally fol- lowed in this country. Who may be an agent and how his au- thority may be shown depend upon the principles of the law of agency, but some special applications of that law may be men- tioned here. Conceivably the agent may sign either his principal's name without mentioning his own; he may sign his principal's name stating in the writing that the signature of the principal is made by him as agent ; he may sign his own name stating in the writing that he is agent for a specified principal; he may sigr. his own name stating in the writing that he is an agent, but with- out mentioning for whom ; or, finally, he may sign his own name without mentioning any agency. Though it is more proper gen- erally for an agent to disclose his agency upon the memorandum, the principal, if in fact he authorized the agent, will be bound by a memorandum signed even in the last form stated.'" One person may act as agent for both parties, so far as making the memoran- "See supra, 5§ 102, 103. Mass. 362, 40 N. E. 178, 28 L. R. A. '" These questions were confused in C94, 47 Am. St. Rep. 463. And under the case of Wilkinson v. Heavenrich, the Statute of Frauds there are many 58 Mich. 574, 26 N. W. 139, 55 Am. decisions involving the same question. Rep. 708, and the court there also See note 66, § 113, supra. Even spe- raised an additional diflRculty in re- cific performance is allowed of a con- gard to consideration, suggesting that tract f'lr the purchase or sale of land, as the contract could not be enforced where one party only has signed a against the plaintiff, there was no memorandum. Browne, Statute of consideration for the defendant's Frauds, § 366. promise. This suggestion is unsound. ™ Trueman /■. Loder, 11 Ad. & El. A voidable or unenforcible promise ."iSO, 594; Higgins r. Senior, 8 il. is sufficient consideration for a count- & W. 834 ; Hunter c. Giddings, 97 er-promise, though a void promise Mass. 41, 93 Am. Dec. 54; Hunting- is not. Thus an infant's promise has ton i\ Knox, 7 Cush. (Mass.) 371; always been held sufficient considera- Phillips t\ Cornelius (Miss.), 28 So. tion to make the counter-promise of 871 ; Haubett r. Rea & Page Co., 77 an adult binding. Wald's Pollock :Mo. App. 672; Stowell v. Eldred, 39 on Contracts (3d ed.), § 66. Like- Wis. 614; Wiener u. Whipple, 53 Wis. wise a voidable promise of an in- 298, 10 N. W. 433, 40 Am. Rep. 775. sane person. Atwell v. Jenkins, 163 FoEitALITIES OF THE CoNTEACT. 143 dum is coneemed, though it will ordinarily be impossible for the agent to represent both parties in entering into the transaction of which the memorandum is the record.^^ It is, however, well settled that one party to the transaction cannot be the agent for the other to sign a memorandum.'" If one person is specifically appointed to sign a memorandum as agent, the authority cannot be delegated,^^ but a signature made in the presence and imder the immediate direction of the authorized agent might perhaps be distinguished on the ground that in such a case the agent was merely making use of the hand of the subordinate for the pur- pose of carrying out his own authority/* § 115. Auction sales. — In part at least, from the necessity of the case rather than from evidence of actual authority, it has from early times been continuously held that the auctioneer at an auction sale is not only the agent of the seller, but is also the agent of the buyer for the purpose of making and signing a memoran- dum.^^ The signature by the auctioneer must, however, be made immediately or it will not be binding, so temporary is his au- " The decisions in regard to auc- tioneers and brokers referred to here- after, §§ 115, 116, sufficiently in- dicate the possibility of one person being agent for both in making a memorandum. As to the limitations of the power of one person to be agent for two parties to the same transaction in general, see Mechem, Agency, § 67. " Wright v. Dannah, 2 Campb. 203 ; Farebrother v. Simmons, 5 B. & Aid. 333; Sharman v. Brandt, L. R. 6 Q. B. 720 ; Bent v. Cobb, 9 Gray, 397, 69 Am. Dee. 295 ; Boardman v. Spooner, 13 Allen, 353, 90 Am. Dec. 196; Tull V. David, 45 Mo. 444, 100 Am. Dec. 385 ; Dunham v. Hartman, 153 Mo. 625, 55 S. W. 233, 77 Am. St. Rep. 741; .Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243 ; Wil- son V. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680; Adams v. Scales, 1 Baxt. 337, 25 Am. Rep. 772; Strong v. Dodds, 47 Vt. 348. Compare Bird v. Boulter, 4 B. & Ad. 443; Murphy v. Boese, L. R. 10 Ex. 126; Snyder v. Wolford, 33 Minn. 175, 22 N. W. 254, 53 Am. Rep. 22; Brent v. Green, 6 Leigh, 16. " Henderson v. Barnewall, 1 Y. & J. 387. "See Williams v. Woods, 16 Md. 220. '= Simon v. Metivier, 1 W. Bl. 599 ; Emmerson v. Heelis, 2 Taunt. 38 ; White V. Proctor, 4 Taunt. 209 ; Bird V. Boulter, 4 B. & Ad. 443; Mews v. Carr, 1 H. & N. 484; White r. Far- ley, 81 Ala. 563, 8 So. 215; Craig v. Godfroy, 1 Cal. 415, 54 Am. Dec. 299; Ansley o. Green, 82 Ga. 181, 7 S. E. 921; Doty v. Wilder, 15 111. 407, 60 Am. Dec. 756; Jones r. Kokomo Assoc, 77 Ind. 340 ; Thomas V. Kerr, 3 Bush, 619, 96 Am. Dec. 262; McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123; Garth v. Davis (Ky.), 85 S. W. 692; O'Donnell v. Leeman, 43 Me. 158, 160, 69 Am. 144: FOEMATION OF THE CoNTEACT. thority/*^ and between the fall of the hammer and the writing of the memorandum, the bidder has a locus penitentiee and may withdraw his bid/^ or the owner of the property may revoke the auctioneer's authority.'* If the auctioneer is himself interested as a seller, he cannot by his signature bind the buyer,'® even though the buyer was aware of the auctioneer's personal interest and assented expressly to his signing the memorandum. The difficulty is insuperable of one party to a transaction signing a memorandum as agent for the other.®" The authority of the auctioneer to sign a memorandum extends to his clerk,*-' and the clerk is not subject to the limitation upon the auctioneer, for if the auctioueer's goods are sold to a third person, the clerk can bind both the auctioneer and the buyer by his signature to the memorandum.*" § IKJ. Brokers' notes. — There have been numerous English decisions in regard to contracts made by brokers upon the question of memoranda under the Statute of Frauds. The English prac- tice is for a broker employed to make a purchase or sale, to enter the bargain when made in a private memorandum book, and imme- diately to send to the respective principals in the transaction a Dec. S4; Ijams r. Hoffman, 1 Md. Me. 394, SOS; Gill r. Bicknell, 2 42.T; Bent v. Colih, 9 Gray. 307, 69 Cusli. 355, 358; Jelka !. Barrett, 52 Am. Dec. 205 ; Springer !. Kleinsorge, Jliss. 315; Sclimidt c. Quinzel, 55 83 ilo. 152; Johnson r. Buck, 35 X. J. Eq. 702 ; Hiclis r. Wliitmore, 12 X. J. L. 338, 10 Am. Eep. 243; ilc- Wend. 548. Comb r. Wriglit, 4 Johns. Ch. 650; "Pike r. Balch, 38 ile. 302, 311, 61 JJentz V. Xewwitter, 122 X. Y. 491, Am. Dec. 248; Dunham i. Hartman, 404, 25 X. E. 1044, 11 L. R. A. 97, 153 Mo. 025, 55 S. W. 233, 77 Am. 19 Am. St. Eep. 514; Pugii i: Clies- St. Rep. 741; Gwathney v. Cason, 74 seldine, 11 Ohio 100, 37 Am. Dec. X". C. 5, 21 Am. Rep. 484. 414; Meadows l\ Meadows, 3 Mc- " Byrne r. Fremont Realty Co., 120 Cord, 458, 15 Am. Dec. 645; Harvey X. Y. App. Div. 092, 105 N. Y. Snppl. J. Stevens, 43 Vt. 653; ^Yalker v. 83S. Herring, 21 Gratt. 678, 8 Am. Rep. '"Bent r. Cobb, 9 Gray, 397, 69 016; Atkinson i. Washington & Jef- Am. Dec. 205; Tull v. David, 45 Mo. ferson College, 54 \Y. Va. 32, 39, and 444, 100 Am. Dec. 385; Johnson i. ca^es cited. Bnt see Dunham v. Hart- Buck, 35 X^. J. L. 338, 10 Am. Eep. man, 153 Mo. 625, 55 S. W. 233, 77 243. Am. St. Eep. 741 ; Adams r. Scales, 1 ™ See supra, § 114. Baxt. 337. 25 Am. Rep. 772. =» See cases cited, stipra, note 75. ™ Smith !'. Arnold, 5 :\rason, 414, ''Johnson v. Buck, 35 N. J. L. 338, 410; Craig r. Godfroy, 1 Cal. 415, 54 10 Am. Rep. 243. Am. Dec. 299; Horton i'. :McCarty, 53 FOEMALITIES OP THE CoNTEACT. 145 Bought note and a sold note. In this country there are few de- eisions in regard to the matter and probably it is more common liere than in England for brokers to contract as principals. More- over, in bargains made on Exchanges the rules of the Exchange often require arbitration and forbid setting up the Statute of J'rauds. The various forms in which the brokers' notes may be made have been thus summarized: " The first is where on the face of the notes the broker pro- fesses to act for both the parties whose names are disclosed in the note. The sold note then in substance says : ' Sold for A. B. to C. D.,' and sets out the terms of the bargain; the bought note hegins : ' Bought for C. D. of A. B.' or equivalent language, and sets out the same terms as the sold note, and both are signed by the broker. " The second form is where the broker does not disclose in the hought note the name of the seller, nor in the sold note the name of the buyer, but still shows that he is acting as broker, not principal. The form then is simply : ' Bought for C. D. ; ' and ' Sold for A. B.' " The third form is where the broker, on the face of the note, appears to be the principal, though he is really only an agent. Instead of giving to the buyer a note : ' Bought for you by me,' he gives it in this form : ' Sold to you by me.' By so doing he assumes the obligation of a principal, and cannot escape responsi- bility by parol proof, that he was only acting as broker for an- other, although the party to whom he gives such a note is at liberty to show that there was an unnamed principal, and to make this principal responsible. " The fourth form is where the broker professes to sign as a broker, but is really a principal, in which case his signature does not bind the other party, and he cannot sue on the contract." ^^ The English law formerly required that a broker in the city of London should make an entry in a book kept for the purpose. Largely becaiise of this statutory requirement the entry in the hook was regarded as the written contract between the parties,^* but since this requirement no longer exists, the question seems to ''Benjamin, Sale (5tli Eng. ed.), '•Benjamin, Sale (5th Eng. ed.), 285, 286. 287. 10 146 FoilMATION OF THE CoNTEACT. be, Was any writing intended as the definite expression of the bargain between the parties and, if so, what was that writing? If the entry in the broker's book and the two notes are harmo- nious in their terms and each contains the full terms of the bar- gain, no difficulty under the Statute of Frauds can arise. Some- times, however, the notes differ from the entry in the book, and sometimes from each other. It seems probable that if either of the notes or the entry in the books could be shown to represent the actual contract of the parties in all its terms, it would be suffi- cient.^'' AVhere, howe-^'cr, the terms of the contract cannot be made out without resort to more than one writing, and the writ- ings are inconsistent, or if the broker's notes are to be regarded as intended to constitute a written contract, and they are incon- sistent, no recovery seems possible unless it be possible to reform the written expression of the bargain.^'' The bought and sold notes are regarded in the cases as a single document.*^ If both are signed this doctrine seems sound. '^'^ Authority to make a contract is sufficient to indicate that a broker has authority to make and sign a memorandum of the contract,^^ but a broker whose only employment is to bring the parties together has no such implied authority.^" As in case of auctioneers, the author- ity of the broker to sign may be revoked at any time before the memorandum is actually made out.^^ " Eowe r. Osborne, 1 Stark, 140 ; C'aerleon Tin-Plate Co. V. Hughes, Go Moore v. Campl.pll, 10 Ex. 323; Iley- L. T. US. 119; Peltier v. Collins, 'a worth r. Knight. 17 C. B. (N. S.) Wend. 459, 20 Am. Dec. 711 ; Suydani 2IIS. In the case hist cited the bought r. Chirk. 2 Sandf. 133; Bacon !.'. and sold notes varied from each other Eccles, 43 Wis. 227. and the court allnwed the contract to "Grant i\ Fletcher, 5 B. & C. 436; be shown by the correspondence be- Goom r. Aflalo, 6 B. & C. 117; tween the parties. See also Parton Sievewright r. Archibald, 17 Q. B. r. Crofts, 16 C. B. (N. S.) 11, where 103; Bibb l\ Allen, 149 U. S. 481, 495, the court allowed the contract to be 13 S. Ct. 950, 37 L. ed. 819. The proved by one note, the other not be- principle runs through all the cases, ing produced. The court held that "See supra, § 108. the two would be presumed to be '" Coddington v. Goddard, 16 Gray, alike. 436. '"Grant p. Fletcher, 5 B. & C. 436; "^ Aguirre r. Allen, 10 Barb. 74. Gregson v. Ruck, 4 Q. B. 737. By " Farmer v. Robinson, 2 Campb. the majority of the court in Sieve- 339, note; Warwick v. Slade, 3 wright r. Archibald, 17 Q. B. 103, Campb. 127. dissenting, Erie, J. ; per Willes, .J., in FOEMALITIES OF THE CoNTEACT. 147 § 117. Time of making the memorandum,— It is commonly said that a memorandum may be made at any time subsequent to tbe making of a contract, and prior to the bringing of an action. It may, however, be made even before the contract is made, as the cases previously cited^^ to the effect that a v^ritten offer is suffi- cient memorandum indicate. That the memorandum need not be closely contemporaneous with the transaction to which it re- lates is shown by many of the cases cited in the previous section. It may be made after breach of the contract,^''' or after the destruc- tion of the goods to which the memorandum relates.®* According to the g reat weight of authority the memorandum cannot be i ffade after action broug ht so as to enable that acfTnTi' to be sus- tained.®^ The memorandum is often said to relate back to the time when the oral contract was made, but it is not necessary to resort to the fiction of a relation to explain the situation. It is the oral contract which is enforced, but it can be enforced only when the statute has been satisfied. The statute does not require the satisfaction to be simultaneous with the bargain, and it is unnecessary to make the fictitious assumption that it is in fact simultaneous in a case where it is not. Satisfaction of the statute does, however, result in an oral bargain theretofore unenforcible becoming binding as of the date of the oral contract, and there seems to be no limit, except that imposed by the Statute of Limita- tions, upon the power of a party to an oral contract at any time to make a memorandum binding upon himself.^® Justice forbids, however, that after third parties have acquired property on the assumption that a certain person is the owner, that this person should thereafter invalidate their title by making a memorandum which for the first time makes effective a prior oral transfer. " See supra, § 106. Gaines i\ McAdam, 79 111. App. 201 ; "'Bird r. Munroe, 66 Me. 337, 22 Bird v. Munroe, 66 Me. 337, 347, 22 Am. Rep. 571. Am. Kep. 571. A contrary decision *' Phillips r. Oemulgee Mills, 55 Ga. under the section of the statute re- 633. See also decisions holding that lating to land is Remington v. Linthi- acceptance and actual receipt of part cum, 14 Pet. 84, 10 L. ed. 364. See of the goods, after the destruction of also Cash v. Clark, 61 Mo. App. 636. the remainder, is a satisfaction of the See also supra, § 71. statute, supra, § 94. " See Emery v. Boston Terminal "Bill V. Bament, 9 M. & W. 36; Co., 178 Mass. 172, 59 N. E. 763, 86 Lucas V. Dixon, 22 Q. B. D. 357; Am. St. Rep. 473. 148 FOEMATIOX Oli- THE Co:NTRACT. Doubtless the memorandum will bind the maker of it, but it will not affect the title of a third person to the property. This principle is generally expressed by sajdng, in analogy with the law of ratifi- cation of an unauthorized agency, that the memorandum has no retroactive effect as to third persons. However the principle be expressed, its effect is evident.®'^ § 118. Written contracts may be varied by subsequent agree- ment at common law. — '' By the general rules of the common law, if there be a contract which has been rediiced into writing, it is competent to the parties, at any time before breach of it, by a ne^v contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract, which is to be proved, partly l)y the written agreement, and partly by the subsequent verbal terms engrafted upon «hat will be thus left of the written agreement." ^* It is also true that if the agi'eement to discharge or vary a contract is made aft( r its breach, it is equally immaterial whether the orig- inal bargain was or was not in writing. The latter agreement is " The leading case is Felthouse r. at the auction sale, Shelton v. Bindley, 11 C. B. (N. S.) 800. In Thompson, 90 Mo. App. 327, 70 S. W. that case the seller of a horse by an 2.56. oral sale put up property, ineludiug " Goss v. Lord Nugent, 5 B. & Ad. hor-p in question, at auction, and the 58, 64. See in accord, Swain r. Sea- ]Mir>c, together with the other prop- mens, 9 Wall. 254, 271, 19 L. ed. 5.54; erty, was sold hy the auctioneer. Pioneer Savings Co. v. Nonnemacher Siih-erjueutly the seller wrote a letter (Ala.), 30 So. 79; Calliope Jlin. to the buyer which was assumed by Co. ( . Herzinger, 21 Colo. 4S2, 42 the court to be a sufficient memo- Pac. 66S; Ward i\ Walton, 4 Ind. randum of the oral bargain. The 75 ; Walter i . Victor G. Bloede Co., buyer, under the oral bargain, sued 94 Md. 80, 85, 50 Atl. 433; Cum- tlie auctioneer for conversion, and it mings i'. Arnold, 3 Met. 486, 489, Was held that he could not recover. 37 Am. Dec. 155; Barton i. Gray, 57 See to the same effect Bird r. Mun- Mich. 022, 24 N. W. fi3S; Van Sant- roe, 66 Me. 337, 22 Am. Rep. 571; voord r. Smith. 79 Minn. 316, 82 Emery i . Boston Terminal Co., 178 N. W. 042 ; Chouteau r. Jupiter Iron :\rass. 172, 59 X. E. 703, Si; Am. St. Works, 94 Mo. 388, 7 S. W. ^fi7 ; Rep. 473. It would seem in Felt- Warren v. Mayer Mfg. Co., 161 Mo. house r. Bindley, the hnyor might 112, 121, 61 S. W. 644; Bryan r. have successfully maintained action Hunt, 4 Sneed, 543, 70 Am. Dec. 262; against the seller, though he could Montgomery r. American Ins. Co., not sue the auctioi-wer nor the buyer 108 Wis. 146, 159, 84 N. W. 175. FOEMALITIES OF THE CoK TRACT. 149 an accord, and if the parties so intend will operate at once without performance to discharge the liability for breach of the original contract.^^ § 119. Contracts within the Statute of Frauds — Rescission. — If an executory contract is within the Statute of Frauds and is in •RTiting or a proper written memorandum has at some time been made, a subsequent oral agreement to rescind the contract is effectual if the oral agreement fulfills the requisites of a con- tract at common law. The Statute of Frauds does not mention contracts of rescission or discharge and such contracts are, there- fore, not affected by its terms.'' It should be noticed, however, that if a contract has been partly executed by the transfer of either real or personal property, an agreement of rescission which contemplates not simply a discharge of unexecuted obligations but a retransfer of the property must certainly be within the section of the statute relating to sales of land or that relating to sales of goods.^ But if the agreement to rescind was paid for with anything other than an executory promise, or if anything was done in accordance with the agreement which could operate . ""Wald's Pollock on Contracts (3d 14 S. W. 1029, 22 Am. St. Rep. 71). cd), &34. And the reasoning seems unanswer- ' Goss V. Lord Nugent, 5 B. & Ad. able, but there is contrary authority. 58, 66; Wulschner v. Ward, 115 Ind. Goss v. Lord Nugent, 5 B. & Ad. 58, 219, 17 N. E. 273. An e.^ception to C6. See, however, Harvey ■^. Grab- this rule should, perhaps, be made in ham, 5 A. & E. Gl, 73 ; Buel v. Mil- the ease of contracts relating to land, ler, 4 N. H. 196; Mahon v. Leech, 11 as such contracts create immediately N. Dak. 181, 90 N. W. 807; Wadge v. an equitable interest in the land. Kittleaon, 12 N. Dak. 452, 97 X, W. Equitable interests are within the 856; Wisner v. Field, 15 N. Dak. 43, staitutes. Topping. Lomas, 16 C. B. 106 N. W. 38; Boyce r. McCul- 145; Smith v. Burnham, 3 Sumn. lough, 3 W. & S. 429, 39 Am. Dec. 35; 435; Dougherty v. Catlett, 129 111. Brownfield's Ex. v. Brownfield, 151 431, 21 N. E. 932; Bro^vne, Stat- Pa. St. 565, 25 Atl. 92. See also- ute of Frauds, § 229. The con- Browne, Statute of Frauds, § 431 et tract to rescind necessarily involves seq.', which makes no distinction be- the surrender of an interest in land. tween contracts for an interest in Tliis has been so held. Catlett v. land and other contracts within the Dougherty, 21 111. App. 116 (see statute. Dougherty v. Catlett, 129 111. 431); = Wulschner v. Ward, 115 Ind. 219, Dial V. Crain, 10 Tex. 444, 454 (see 17 N. E. 273. also Huffman v. Mulkey, 78 Tex. 556, 150 EOKMATION OF THE CoNTEACT. as an accord and satisfaction, the original agreement doubtless would be effectually discharged.* ^ 1-20. Variation of contract within the Statute of Frauds — General doctrine. — ]More difficult questions are presented when the subsequent oral agreement does not purport totally to rescind but only to vary some of the terms of an original bargain, which was within the Statute of Frauds but of which a memorandum had been made. It seems clear on principle that no right of action can lie for breach of the second agreement or of the first and second combined. To allow such a right would be to enforce a contract within the statute when some terms at least of the con- tract were oral.'* On the other hand, if the terms of the oral contract have been performed, such performance operates as a satisfaction of the liability on the original contract. The Statute of Frauds does not apply to contracts executed either by delivery of the goods or by payment, so that when the oral agreement is performed its performance has the effect which the parties agreed it should have.'' If the terms of the oral agreement have not been performed, the original contract still remains in force. Though an oral agreement to rescind without more would be effectual, where the rescission is to be effected only by the necessary impli- cation contained in the agreement to substitute a new contract differing is some of its terms from the old one, there can be no 'Burns r. Fidelity Real Estate Co., N. E. 456; Heisley v. Swanstrom, 40 52 :\Iinn. 31, 36, 53 N. W. 1017; War- Minn. 196, 41 N. W. 1029; Burns v. xen r. Mayer Mfg. Co., 161 Mo. 112, Fidelity Real Estate Co., 52 Minn. 31, 122, 61 S. W. 644; Long V. Hartwell, 53 N. W. 1017; Thompson v. Thomp- 34 N. J. L. 116; Miller v. Pierce, 104 son, 78 Minn. 379, 81 X. W. 204, 543; N. C. 389, 10 S. E. 554; Jones v. Rucker ■;;. Harrington, 52 Mo. App. Booth, 38 Ohio St. 405; Phelps v. 481; Warren v. ilayer Mfg. Co., 161 Seely, 22 Gratt. 573; Jordan v. Katz, Mo. 112, 61 S. W. 644; Dana v. Han- 89 Va, 628, 630, 16 S. E. 866. cock, 30 Vt. 616. 'Stead V. Dawber, 10 A. & E. 57 'Moore r. Campbell, 10 Ex. 323; (overruling Cuff -o. Penn, 1 M. & S. Leather Cloth Co. v. Hieronimus, L. 21); Marshall v. Lynn, 6 U. &, W. R. 10 Q. B. 140; Swain v. Seamens, 109; Noble v. Ward, L. R. 1 Ex. 9 Wall. 254, 19 L. ed. 554; Long v. 117; Carpenter v. Galloway, 73 Ind. Hartwell, 34 X. J. L. 116, 127; Jack- 418; Bradley v. Harter, 156 Ind. 499, son v. Liteh, 62 Pa. St. 451; Ladd v. 60 X. E. 139; Cummings r. Arnold, King, 1 R. I. 224, 231, 51 Am. Dec. 3 INtetc. 486, 491, 37 Am. Dec. 155; 624. Compare Dana v. Hancock, 30 King V. Faist, 161 Mass. 449, 456, 37 Vt. 016. FOEMALITIES OF THE CoNTEACT. 151 rescission if the agreement for substitution is invalid." Even if one party oif(.'rs to perform his promise under the new agree- ment, the other party may, according to the better view, still insist on the original contract, and refuse to accept the sub- stituted performance to which he had orally agreed.^ § 121. Variation of contracts within the statute — Massachusetts doctrine. — In an early case,* however, the Supreme Court of Massachusetts adopted a distinction that was suggested by Lord Ellenborough in Cuff v. Penn,® between the contract and its per- formance. '' The statute," Wilde, J., says, '' requires a memo- randum of the bargain to be in writing, that it may be made certain ; but it does not undertake to regulate its performance." The court then proceeds to argue that as a substituted perform- ance would operate as a satisfaction of the original contract, and tender is equivalent to performance, the plaintiff could sue on the original contract and prove in support of it an offer to per- form with the alterations later agreed upon. But the sounder view even in the case of a binding contract of accord, is that tender is not equivalent to performance, and there is no satisfac- tion even if the tender is wrongfully refused.'"* However this may be, a tender where there is no obligation to accept it cannot possibly have the effect of performance. The learned author of the leading text-book on the subject^^ gives his approval to the decision, but the current of authority seems strongly against it. § 122. Amount of variation. — No distinction is taken in the "I^oWe V. Ward, L. E. 2 Ex. 135; 24 N. E. 703. See also Dana v. Hau- Hasbrouck -u. Tappen, 15 Johns. 200; cock, 30 Vt. 61C. Barton r. Gray, 57 Mich. 622, 632, 24 » Cumminga u. Arnold, 3 Mete. 486, N. W. 638. 37 Am. Dec. 155. ' Stowell V. Robinson, 3 Bing. N. C. ° 1 JF. & S. 21. The suggestion was 928; Noble v. Ward, L. E. 2 Ex. 135; repudiated in Stead v. Dawber, 10 A. Plevins u. Downing, 1 C. P. D. 220; & E. 57, and Marshall v. Lynn, 6 M. Swain v. Seamens, 9 Wall. 254, 271, & W. 109, and is wholly discredited 19 L. cd. 554; Lawyer v. Post, 109 in England. ITed. Rep. 512, 47 C. C. A. 491; Brad- "> Wald's Pollock on Contracts (3d ley V. Harter, 150 Ind. 499, 60 N. E. ed.), 832. 139; Walter v. Victor G. Bloede Co., "Browne, Statute of Frauds, § 424. 94 JId. 80, 50 Atl. 433; Rucl 12 C. B. 801. " Smiley v. Barker, 83 Fed. Rep. 154 FOEMATION OF THE CoiSrTEACT. the court held, indicated that the statute related to the remedy, and, therefore, the plaintiff could not maintain his action. There are dicta in the case that the seventeenth section relates to the sub- stance of the contract, not to the remedy, and that, therefore, in sales of personal property the statute where the contract was made would be the one which governed. In this country in contracts for the sale of goods, these dicta have been foUowed.^^ In view of the rule generally recognized that the Stacute of Frauds establishes a rule of procedure or of evidence and that a failure to comply with its provisions makes a contract unenforcible only,^^ it is di£6cult to see how it can fairly be said that the satisfaction of the statute relates to the substance of the contract rather than to the remedy upon it. The distinction suggested by the English court between the words " no action shall be brought " and " no contract shall be allowed to be good," has not been generally adopted in other cases than those involving the conflict of laws, and the distinction seems an undesirable refinement. In this country where the precise words of both sections have frequently been changed and the change has not been regarded as changing the meaning of the English prototype, the distinction is not only oversubtle but is unimportant. It must be admitted, however, that though these decisions on the conflict of laws as applied to sales of goods within the Statute of Frauds are difficult to justify in theory, they produce a satisfactory result. Parties to \ con- tract or sale naturally observe the formalities requisite to make an enforcible contract in the place where they are contracting. They may fairly be held to that standard of care ; and on the other hand to deprive the plaintiff of a remedy if the defendant moves from a State where no Statute of Frauds was in force, and where the bargain was made, to a State where a Statute of Frauds is in force, is undeniably a practical injustice. "Allen V. Schuchardt, 1 Fed. Cas. p. Lewis, 26 U. C. Q. B. 618. A mim- No. 236; Low v. Andrews, 1 Story, ber of decisions upon other sections 38; Kling r. Fries, 33 ilicli. 275; of the statute are collected ' in 19 Houghtaling r. Ball, 19 Mo. 84, 59 L. R. A. 792, note, 64 L. E. A. 119, Am. Dec. 331, 20 Mo. 563; Dacosta r. note. Davis, 4 Zab. 310; Hunt r, Jones, 12 "See supra, §§ 71, 72. R. I. 265, 34 Am. Rep. 635; Green CHAPTER IV. Subject-Mattee of the Contract. Section 127. Statutory provision as to future goods. 128. Contract to sell future goods. 129. The acquisition of the goods by the seller may depend upon a contingency. 130. Sale of future goods. 131. Estoppel. 132. Sale of an expectation. 133. Potential possession — General rule. 134. Potential possession — Modern English law. 135. American law — Crops. 136. American rule — Young of animals. 137. Sale of future property amounts to contract. 138. Equitable effect of contract to sell. 139. Theoretical basis for the doctrine. 140. Extent to which the doctrine is adopted. 141. Reasons for applying the rule to sales. 142. Examination of these reasons. 143. Seller's insolvency should not give equitable jurisdiction. 144. Effect of the Bankruptcy Law. 145. Choses in action. 146. Sale of undivided shares. 147. Possibility of sale by owner of undivided share in England. 148. Sale of specified quantity from a larger mass in England. 149. Reason for the English view, and its validity. 150. Buyer becomes tenant in common with other owners. 151. Consequences of the doctrine of tenancy in common. 152. Mass of undetermined quantity. 153. Confusion of goods. 154. Elevator cases. 155. Sale of a portion of a mass. 156. The weight of American authority supports this view. 157. Incidents of the tenancy in common. 158. Selection. 159. What are fungible goods. 160. Provision of Sales Act as to destruction of goods sold. 161. A sale of specific goods is void if goods not in existence. 162. Deterioration or partial destruction of the goods prior to the sale. 163. Provision of Sales Act as to destruction of goods contracted to be sold. 164. A contract may be avoided if the goods are destroyed or injured. 165. Rules of the civil law. [155] 156 Formation op the Conteact. § 127. Future goods — Provisions of the Sales Act. — Sec. 5. EXISTING AND FUTURE GOODS.— (1.) The goods which form the subject cf 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, in this act called " future goods." (2.) There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3.) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods. ^ § 128. Contract to sell future goods. — There is no doubt of the possibility at common law of contracting to sell goods which the seller does not own at the time. Contracts by a manufacturer for the sale of his future product form a typical instance. Con- tracts to sell goods, especially stocks and staple commodities like grain and cotton, which the seller does not own at the time have, however, been made the means of speculations depending so greatly on chance that they have sometimes been classed as gambling transactions and treated as contrary to public policy. The limits both statutory and at common law of the rules of public policy governing this question will be hereafter considered.' It is enovigh to say in this connection that the common law never forbids any contract to sell merely because the seller does not own the goods which are the subject of the bargain,^ and that statutes, even tboiicii purporting to have an effect as wide as this 'This follows section 5 of the "Watts r. Friend, 10 B. & C. 446 English Sale of Goods Act in mean- (crop not yet sown) : Hibblewhite i'. infr. and the only change in language M'Morine, 5 'M. & W. 462 (goods is in the use in(l)oi the words "con- which seller can only acquire by pur- tract to sf'll " twice instead of ''con- chase) ; Mortimer v. ileCallan, 6 tract of sale:'' tlie use of the same 5f. & W. 58 (stock not owned by words in (2) instead of "contract seller); Ajello r. Worsley, [isnsi 1 for the sale of" and the snbstitution Ch. 274 (piano of a rival maker not in (3) of "where the parties pur- vet purchased). Many American port " for " wliere liy a contract of cases involving such contracts are sale the seller purports." cited, infra, § 135. - Ivfra, § 664. SuBJECT-AlATTEJa OF THE CoNTEAGT. 157 (as occasionally kappens), have been construed, in view of the mischief at which they were aimed, to have a narrower con- struction.* § 129. The acquisition of the goods by the seller may depend upon a contingency. — What has been said in the preceding section is applicable also to the provisions of subsection 2. As parties to a contract may make what promises they choose so long as they are not illegal, so they may malve these promises subject to any conditions which they choose which are not illegal; and making the contract conditional upon the acquisition of the goods is not, without more, illegal. A typical instance of such con- tracts as are referred to in the subsection in question may be found in " sales to arrive." The words " to arrive " in such bar- gains have been construed to mean, in effect, " if they shall ar- rive,'' not, "which I agree shall arrive."^ The promise of each party is, therefore, subject to the same condition, the arrival of the goods.® § 130. Sale of future goods. — It is obvious in the nature of the case that it is impossible for a seller to transfer title to goods of which he has neither ownership nor possession at the time of the sale. As he has no title he can give none.^ There are, however, some cases where an attempt by a seller to sell goods, which he did not at the time own but which he afterward acquired, has been thought to have a wider effect than a mere contract to sell. These cases may be classified under the heads of estoppel; sale of an expectation, sale of property in the potential possession of the * See infra, § 664. tied that a person cannot by deed, "Johnson r. McDonald, 9 M. & W. however solemn, assume that which 600; Neldon v. Smith, 36 N. J. L. is not in him. In other words, that 148; Abe Stein Co. v. Robertson, 167 there cannot be a prophetic convey- N. Y. 101, 60 y. E. 329; Rogers v. anee.'' Belding v. Read, 3 H. & C. Woodruff, 23 Ohio St. 632, 13 Am. 955, 961, per Pollock, C. B. Lunn r. Rep. 276. See also Hale v. Rawson, Thornton, 1 C. B. 379: "The com- 27 L. J. C. P. 189. mon-law maxim is conclusive upon "See further as to sales to arrive, the point, nemo dat quod non hahet." I 188_ Emerson v. European, etc., Ry. Co., '"It is a common learning in the 67 5Ie. 387, 24 Am. Rep. 39. See law that a man cannot grant or also Skipper v. Stokes, 42 Ala. 255, charge that which he hath not." 94 Am. Dee. 646, and, further, the Perkins' Profitable Book, Tit. Grant, American cases cited in the following § 65. " The law has long been set- notes. 158 FOKMATION OF THE CoNTEACT. seller, and equitable property rights acquired by contracts to sell future goods. These may be treated in order. § 131. Estoppel. — If a seller purpoits to make a present sale of goods which he does not own, and the buyer is ignorant of the seller's lack of title, the seller will be estopped in any contest with the buyer to deny that he himself had title when he pur- ported to make a sale. By assuming to sell the goods, the seller represents that he is the owner of them. The buyer by buying them indicates his reliance on the seller's representations, and suffers damage by such reliance. If the seller never acquires the goods, this estoppel clearly can have no effect upon the title. But if the seller actually acquires the goods after he has pur- ported to sell them, it is said that title to the goods passes by estoppel, thereby giving the buyi_-r a property right.* Cases arise more commonly upon this point in regard to real estate,^ but since it is now recognized that in a sale of personal property a war- ranty of title is implied,^° the principle does not seem to differ whether the property in question is realty or personalty. Though it is generally said that the title passes by estoppel, it seems on principle that the exact statement is rather that the seller is estopped to deny that title has passed. Therefore, in any contest as to the ownership of the goods with him, or with those who stand in his place, the buyer will prevail.'''' If, however, after the b^ysr has acquired title and while he has possession of the goods he sells and delivers them to a purchaser for value 'U'ho has no notice of the previous sale, the later purchaser should 'Littlefield v. Perry, 21 'Wall. 205, Atl. 970. The contrary suggestion in 22 L. ed. 577; The Idaho, 93 U.' S. Bryans r. Nix, 4 il. & \V. 775, 794, it 575, 23 L. ed. 978 ; Gottfried v. Jlil- should be noticed, v;aa made before it ler, 104 U. S. 521, 26 L. ed. 831; was settled that a seller impliedly Curran v. Burdsall, 20 Fed Rep. 835 ; warranted his title to the E ,nwlpv i)_Bifrel9W, 12 Pick. 30 7, 1?, See Jlorley v. Attenborough, 3 Ex. Am: Dee. 607 ; Clark v. Slaughter, 34 500. Miss. 65; Hickman c. Dill, 39 Mo. 'See Bigelow, Estoppel (4th ed.), App. 246; Gardiner r. Suydam, 7 377 et seq. N. Y. 357, 363 ; Frazer v. Hilliard, 2 ^" See infra, § 218. Stroh. 309 ; Sherman v. Transporta- " If for any reason there is no im- tion Co., 31 Vt. 162. See also Kane plied warranty of title there will be V. Loder, 56 N, J. Eq, 208, 38 Atl. no estoppel. Scranton v. Clark, 39 966; Harvey v. Harvey, 13 R. I. 598; N. Y. 220, 100 Am. Dec. 430. Coolidge V. Ayers, 76 Vt, 405, 57 Subject-Mattek of the Contract. 159 be protected, for the seller actually had the title to the goods, and though he, on account of an equitable rule binding him per- sonally, cannot assert this title, the purchaser for value, not being subject to the equity, may do so. The decisions in regard to real estate upon this point are in great conflict.''" The. weight of au- thority seems to be, however hard it may be to explain the result in theory, that a title good against all the world actually passes to the buyer upon the acquisition of title by the seller. While the difference between transferring a real title to the buyer and merely estopping the seller to deny that the buyer has title has not been much discussed in the cases on personal property, some of the decisions seem to involve the question and to decide in accordance with the weight of authority in the cases relating to land that a title good against third persons passes. ^^ There are other cases where the buyer may get title by the estoppel of the owner of goods. Thus far the estoppel of the seller only has been considered, but sometimes an owner of goods intrusts an- other with such appearance of title that not only will the person intrusted be estopped to assert a title against one to whom he has sold the goods, but the person intrusting will also be estopped. Such cases are considered in a subsequent chapter.^* § 132. Sale of an expectation. — There has been considerable dieusssion in the civil law in regard to the sale of an expecta- tion. The rule of the civil law has been thus summarized: " When what is bought is a thing which does not as yet exist, and which may never exist at all, or the quantity or value of which is so indeterminate that it may, as we say, come to nothing, the transaction is called emptio spei. If the intention of the parties is that the purchase money shall be paid in any case, whether the hoped-for equivalent comes to anything or not, it is commonly termed, for the sake of distinction, emptio spei simplicis: if it is that it shall not be paid in proportion to what the purchaser actually gets, it is termed emptio rei speratce. The first is pre- sumed to be intended in such cases as where one agrees to buy " Rawle, Covenants, § 256 et seq. ; " The Idaho, 93 U. S. 575, 23 L. ed. Bigelow, Estoppel (4th ed.), 420 et 978; Rowley u. Bigelow, 12 Pick. 307, 3eq.; 11 Am. & Eng. Encyc. of Law 23 Am. Dec. 607; Frazer v. Hilliard, (2d ed.), 417 et seq. 2 Strob. 309. " Chapter X, infra, § 310 et seq. 160 FoEMATIOlir OF THE CoNTEACT. the fish that shall be caught in such or such -a net or nets, the game that shall be killed in such or such a battue, the minerals that shall be extracted from such or such a mine to be opened. The second, which is in fact the purchase of a future thing con- ditionally on its coming into existence, is presumed to be intended \vhen one buys a thing which may reasonably be expected to come into existence in the ordinary course of nature : e. g., the offspring of a slave woman now actually with child, the lambs to be born in the following spring on a particular sheep run, or next season's yield from a certain farm, garden, or vineyard. In such a case the quality of the produce has no effect upon the amount of the purchase money, which, as it cannot be increased because the quality is better, similarly cannot be diminished because it is worse in fact than was expected. The presumption, however, in favor of either construction can be rebutted by evidence of a con- trary intention. For instance, if one were to agree to biiy for a fixed sum the whole of next year's vintage on a particular vine- yard, this would be an emptio spci; but if the agreement were for ten casks of the wine which so and so should make next year from his vineyard, it would be an emptio rei speratcB, and if only five casks Avere made, or none at all, the purchaser would have to pay only for five or none ; while conversely the vendor would not be liable to deliver more than was made in fact, though he might have agreed to sell more." ^^ In one case it was said by Martin, B. " a man may buy the chance of obtaining the goods," ^^ and in an Alabama casc,-'^ Saffold, J., said: "The fisherman may sell the next cast of his net." ISTeither case, however, involved the qiiestion, and probably by " buy " and " sell " the judges meant no more than contract to buy and sell. There seem to be but two rights in our law which the buyer can acquire by a bargain for goods which the seller may thereafter acquire, and neither of these rights is a property right in the strict sense of the term. The seller may grant the buyer a power to take the goods when they come into existence so that they never eome into the posses- " Moyle, Contract of Sale in the " Buddie v. Green, 27 L. J. Ex. 33, Civil Law, 30. In our law this sort 34. of question has been very little dis- " Jones v. Webster, 48 Ala. 109, cussed, 112. Subject-Mattee ot? the Cokteact. 161 sion of the seller. Thus if the ^seller wished to sell the animals 'that he might catch in 'his traps, or the legacy -which he might receive from an imole 'when 'the latter died, 'he could give a power lauthorizing the buyer to talie the animals, or. receive the legacy, iand when the buyer exercised • the power he ' would immediately : became the owner of the property, festead of giving such a power :the : seller might contract to transfer the -goods to "the buyer as soon .as he, the seller, received them. That is, :he might make -a contract to sell. But the mere ^acquisition of the 'goods 'by 'the seller does mot, it seems, in our law operate as a transfer of title to the buyer even though the parties intend that it shall do so.^* § 133. i'oteatial rpossessicm. — '^GrEneraLruIe. — In an early case^* it" was ;held that in certain caeesa seller might transfer title to .:goods which he did not then own. The case related to a -future crop of corn land it was held that -a buyer of the corn from a lessee of the land had a better title than the reversionary owner of the lease,- though. at the time of the litigation the lessee's estate -bad ended. The court said: "And though 'the lessor had it not .^actuallyin him,:.nor certain, yet he had it potentially;' for the land is the motier '.and root of all fruits. Therefore he that ■ hath it .may. grant all -fruits that ■ may arise upon it -after, and the property shall pass as soon as the fruits are extant, as 21 Hen. VI. A parson may .grant all the tithewool that he shall. have in such a year, yet .perhaps he shall have none; but .a man cannot. grant uall the wool that shall grow upon his - sheep that 'he shall buy " Robinson r. Macdonnell, 5 M. & S. i 'eannot be ' given ■ mocli weight as a 228; Lo-w- r. Pew, 108 Mass. -347, 11 contrary autliority. The whole doc- Am. ,Eep. 357. In the latter case trine that futnre goods cannot be fishermen purported -to "sell, assign, sold, and that a imo'rtgage of such 'and set ov«r, .all halibut wliichi:may .[goods is at : most binding 'in -equity, .be eaught -by the imaster and -crew fineeessarily proeeeds-upon the -assump- - of thesehooner 'Florence l?eed ' 'on 'tinn of the 'principle stated in'the ■the voyage upon which --she is. about text. See further, .SMpra, § 6; infra, ■ to. proceed." -^'hile the .schooner -was § -274; Benjamin, Sales fSth ed.), ^■upon her -voyage the fishermen be- 127. .came -bankrupt, I and -it: was held" that "Grantham r. Hawley, [1616] Hob. their .assignees in banlcrup-tcy Jhad 132. Though Grantham v.'Hawley is : title to the. fish that had been caught, the leading case, the idoictrine -is as against. the.'buyer. The uncDnsid- nearly .200' years older. Y. -B. 21'"H. ■ered. dictum,' quoted' in the text from VI, 43, stated ;in' Benjamin l^Sth'-Eng. Jones V. .-iWebster, 148 .:Ala. 109, . 112, - ed. ) , 130. 11 162 Formation of the Conteact. hereafter; for there he hath it neither actually nor potentially." The doctrine of this case has often been repeated, but the illustra- tions given have always been confined to crops and the young of animals. It may be assumed that the doctrine would not now be extended beyond these cases. Its precise limits even in these cases are not very clear. It is obvious, in the nature of the case, title cannot pass when the bargain is made, but it would be possible to say that title passed as soon as the goods came into existence, and, as shown by the preceding section, this would be an extension beyond the general rule of the common law as to future goods. The rule, however, seems to have a wider meaning than this when carried to its full extent. It seems to be assumed that title passes as of date of the bargain. Accurately expressed, this means that when the goods come into existence, title to them passes free from any defects of title due to rights which have accrued since the time of the original bargain.^" § 134. Potential possession — Modern Eng^lish law. — The doc- trine of potential possession has not been much applied in Eng- land. It was, however, applied in one modern case in which Gran- tham V. Hawley^-' was cited and followed. ^^ This case escaped the attention of the draughtsman of the English Sale of Goods Act,^* ™ Thus in Grantham v. Knn ley. Indeed, Langton r. Higgins, 28 L. J. Hob. 132, at the time when the corn Ex. 252, closely looked at, seems to had actually been grown, the seller negative it." Chalmers, Sale of no longer had title to the land, and (roods Act (5th ed.), 19. Langton r. it would have been impossible for him Higgins is not in conflict with the to transfer title to the corn at that case of Fetch p. Tutin, 15 JI. & W. time. 110, or with the doctrine of potential "'Hob. 132. possession generally. It was not the ^ Fetch t\ Tutin, 15 M. & W. 110. case of the sale of a future crop, as In this case a mortgagee of a crop such, but a, sale of the oil of pepper- not then planted was preferred to a mint to be manufactured from tlie creditor who levied upon the crop crop. The seller was to prepare and when it had been grown as the prop- bottle the oil which he derived from erty of the mortgagor. The doctrine the crop. The doctrine of potential was also referred to in Lunn r. Thorn- possession has not been applied to a ton, 1 C. B. 379. bargain of this sort. It is true ^ " There is no rational distinction that in Story, Sales, § 185, the between one class of future goods and author states as an illustration that another, and the supposed rule [in the owner of a vineyard may make a regard to potential possession] ap- valid sale of the wine a vineyard is pears never to have been acted upon. expected to produce. The illustra- Subject-Mattee of the Conteact. 163 and, therefore, no exception was made to the general rule of sub- section (3) of section 5 of the English act, providing that what purports to be a present sale of future goods shall operate as an agreement to sell. Since the passage of the act in England, it may be assumed that the doctrine of potential possession is abolished. § 135. American law — Crops. — In this country the doctrine of potential possession has received frequent recognition from the courts, especially in the case of the transfer of crops to be thereafter grown. Xearly all the cases relate to mortgages, but, so far as concerns the legal title, there seems no differ- ence between the power of the owner of land to mortgage and to sell the crops growing thereon. It is held in most of the States where the question has arisen that the owner of land may tion, however, is but one of several and vras not warranted by any de- cision. The illustration was doubt- less suggested by the author's reading in the civil law. Story's language, including the illustration in question, has been quoted in several cases. Shaw V. Gilmore, 81 Me. 396, 17 Atl. 314; McCown v. Mayer, 65 Miss. 537, 541, 5 So. 98; Fidelity Co. v. Sturte- vant, 86 Miss. 509, 521, 3S So. 783, 109 Am. St. Rep. 716. In none of these cases, however, was the passage quoted with reference to the illustra- tion of the vineyard, and none of the cases involved the question of manu- factured goods. In Van Hoozer v. Cory, 34 Barb. 9, it is true it was held that the doctrine of potential possession applied to cheese to be made from milk furnished by the grantor's cows. This decision stands alone, however, and must be regarded as questionable. There can be no doubt that the ordinary presumption applies to such a case, that if some- thing remains to be done by the seller to put the goods in deliverable con- dition, an intention to pass title im- mediately will not be presumed. Northwestern State Bank v. Silber- man, 154 Fed. Rep. 809, 83 C. C. A. 525. In this case, the seller con- tracted to sell 6,600 fleeces, about 50,000 pounds of wool, to be clipped from native sheep, the understanding, if not the contract, being that the wool was to be clipped from the seller's flock, thoiigh not necessarily from all of the flock. The bargain was held to be wholly executory because of the things remaining to be done by the seller to put the goods in deliverable condition. The doctrine of potential possession was not referred to. See also Welter v. Hill, 65 Minn. 273, 68 N. W. 26. This rule deferring change of ownership where something re- mains to be done to the goods, to be sure, is merely one of presumption, but even if the parties clearly intend a sale, it may be doubted whether their intention could be given effect in view of the artificial character of the doctrine of potential possession, and the fact that none of the early authorities warrant the extension of the doctrine to manufactured goods. 164 FOKMATION OF THE CoXTRACT. jnortgage.a future crop.^* In a few,S.tates, however, the crop must be actually .planted in order that the mortgage should be valid.^^ Jt may be assumed that the same doctrine would be .applied in icases of sales."'' .It is obvious, -however, that there may be serious I'practical difficulty in applying the doctrine of potential posses- sion. If it be true that the legal title to a future crop passes, it Vv'ould seem that a man might jnortgage the crops on his land for .any number of years in advance au'd that the mortgagee's title would prevail over .a purchaser for value of the matured crop or any subsequent purchaser. of the crop, though he iad no-knowledge ■where it was. grown and could have none, and the mortgagee's title would. also prevail over the title of one who purchased the land prior to the time when the crop was raised. The fact that the =' Butt V. EMett, 19 Wall. 544, 22 L. ed. 183; Briggs v. United States, 143 U. S. 346, 12 S. Ct. 391, 36 L. ed. 180; Lambeth r. Ponder, 33 Ark. 707 (statutory) ; '\'\'ilkinson r. Ketler, 69 Ala. 43.5; Smith v. Fields, 79 Ala. 335; Keyser r. Maas, 111 Ala. 390, 21 So. 346; Leslie v. Hinson, 83 Ala. 26(1, 3 So. 443; Arques t. V^'asson, 51 Cal. 620, 21 Am. Rep. 718; Wilkerson V. Thorp, 128 Cal. 221, 60 Pac. 679; Wheeler v. Becker, 68 Iowa, 723, 28 N". W. 40; Xorris v. Hix, 74 Iowa, 524, 38 N. W. 395; Strawhacker i\ Ives, 114 Iowa, 601, 87 X. W. 669; Shaw V. Gilmore, 81 Me. 396, 17 Atl. 314; Kelley v. Goodwin, 95 Me. 538, 50 Atl. 711. See also Thurlough v. Dresser, 98 :Me. 161, 56 Atl. 654; Dickey r. Waldo, 97 Mich. 255, 56 X. W. 608, 23 L. R. A. 449 ; ]Minne- sota Oil Co. r. Maginnis, 32 Miim. 193, 20 N. W. 85; Close r.-Hodgea,'44 Minn. 204, 46 N. W. 335; Hogan v. Atlantic ^^'orks, 66 Minn. 344, 69 N. W. 1 ; McCown v. Mayer, 65 ]\tis3. 537, 5 So. 98; Stadeker v. Loeb, 67 Miss. 200, 6 So.'687; Gandy r. Dewey, 28 Nob. 175, 44 N. W. 106; Sporer v. MoDermott, 69 Neb. 533, 53S, 96 N. W. '232 (but see Nebraska cases in the following note) ; Cumberland Nat. Bank v. Baker, '57 X. J. Eq. 231, 40 Atl. 850; Andrew r. New- comb, 32 X"^. Y. 417 ; Fleetham y.Eed- dick, 82 Hun, 390 (compare Roch- ester Distilling Co. v. Rasey, 142 X'. Y. .570, 37 X. E. G32, 40 Am. St. Rep. 635) ; Weil r. Flowers, 109 N. C. 212, 13 S. E. 761; Crinkiey y. Eger- ton, 113 XT. C. 142, 18 S. E. 341; ■Moore y. By rum, 10 S. C.-452, 30 Am. 'Rep. 58; Watkius r. Wyatt,:9 :Baxt. 250, 40 Am. Rep. 90. ^•Redd i\ Burrus, 58 Ga. 574: Crine v. Tifts, 65 Ga. 644; Stowell r. Bair, 5 111. App. 104; Davis v. Shepherd, 87 111. App. 467; Hutchin- son V. Ford, 9 Bush, 318, 15 Am. Rep. 711; Cole r. Kerr, 19 Neb. 553,-26 X". W. 598; Brown v. Xeilson, 61 Neb. 765, 86 N. W. 498, 54 L. R, A. 328, 87 Am. St. Rep. 525 (but see Nebraska eases in the precedingnote) ; Cudworth v. Scott, 41 X. H. 456; Rochester Distilling Co. v. Rasey, 142 N. Y. 570, 37 N. E. 632, 40 Am. St. Eep. 635. And in Wisconsin a mort- gage is not good unless the crop has ■germinated. Comstock v. Scales, 7 Wis. 159. "^° See cases in previovts note ; also Low r. Pew, 108 Mass. 347, 349, 11 Am. Rep. 357. Subject^Mattee of the Conteact. 165 mortgage nrnst be recorded does not avoid the force- of- thes& ob- jeotions,- for-the purchaser may have no means of knowing where- tte' record' is. In' buying wheat in Chicago he cannot tell whether- the man that raised it mortgaged it before- it was growny and' even' m buying land it seems a harsh- req-uirement' to make a'. purchaser" at his peril examine records-'of chattel mortgages- made by all pre- vious- owners of the land, im order- to make- sure- that- the crops- have not been mortgaged' ahead: For- these reasons it is probable-, that the doctrine would not be carried to- its- logical' limit in many jurisdictions. In some- states a limitation of ■ time is imposf-d'. Thus in Alabama,^'^ Arkansas/*' Minnesota,^ South- Caroliua,^*" the- statutes prohibit such mortgages- made either prior to the- Ist" of January preceding the planting of the crop, or more-than a year ■ before its planting: Even in the- absence of such a statute it' has- been held that an unlimited- grant of the future- crops from a- grantor's land is invalid. ^-^ It is not always- easy to tell in- the- decisions upholding mortgages of future erops whether the- de-- cision is to be rested uponthe legal'doctrine of 'potential'possessioni or whether the court is relying on the doctrine subsequently -to be-^ dealt with^^ of equitable rights given by a contract" to transfer-- future goods. As chattel mortgages require record- in order -to pre- serve even legal rights, an unrecorded mortgage will be of no value except as between the parties. On the other hand; as an-equi- table rightis good against all parties' who are charged -with" notice of its existence, and as record of-' an equitable mortgage- under - many statutes will operate as notice to everybody, any- properly' recorded mortgage is good against everybody, though" the-rightcon- veyed be equitable only. Accordingly it is generally 'unnecessary for a court when dealing with a mortgage to decide whether the-^ "Code (1896), § 1064. definite period of time. The contro- ''^Dig. of .St; (1894), § 5101. versy is- over the fifth-. cropy. sold iby ^E'ev. Laivs (1905), § 3475; the assignor,- -wlio was ■ iiP' possession: '° Ci-vil Jode (1902), § 3059. of the-same^ to-a 6omo /^Seipurchaser;- "' Sha-w t;. Gilmore,- 81 Me. 39&, 17" Under the rules' of the eorranon law; Atl. 314. And see cases cited above the- conveyance nrist be-. held' inopera- to the effect' that a grant of an un- tive as to the: hay in dispiitet and> planted crop is not ' valid. In Sha-w therefore, the plaintiff's title to tine': V. Gilmore, the court- said: " lii the- same- fails." present case, the grant purports to be "'See infra; §§ 138—142. of the yearly crop of hay for an' in- 166 FOEMATION OF THE CoNTEACT. right conferred by it upon the mortgagee was legal or equitable. In some cases, however, the court has clearly expressed the view that the right is equitable only.^^ In the case of sales the objec- tions which exist to the doctrine of potential possession as applied to mortgages are enormously increased. iN'o record is necessary for the validity of a sale, and if the owner of land may sell his future crops, the result may well be hardship upon innocent third persons. The rules of law in regard to delivery or those forbid- ding retention of possession by the seller do not afford complete protection. It seems, therefore, that the conclusion of the draughts- man of the English Sales of Goods Act is sound, that " There is no rational distinction between one class of future goods and an- other." The American Sales Act, therefore, makes no exception to the general rule as to future goods in favor of goods of which the seller has potential possession. The buyer of such goods can- not acquire under the provisions of this act more than an equitable right. He will only acquire this, moreover, in jurisdictions which give such right in regard to future goods of other kinds.^* As mortgages, however, are not covered by the Sales Act^^ except in a few instances where it is so specially stated, the right to mort- gage crops or other future goods is not affected by the act. § 136. American rule — Young of animals. — The doctrine of potential possession has been applied in this country, occasionally (though far less frequently than to crops), to transfers of the future young of animals. Though the validity as between the parties of such transfers has been generally recognized, and though the courts have relied in their decisions upon the doctrine of po- tential possession, it may be doubted w^hether many courts would hold that the transferee acquired a title good against a subsequent purchaser for value in good faith of the young animal.^* The ''Wilkinson v. Ketler, 69 Ala. 435 =" The decisions which go farthest (hut see Keyser v. Maas, 111 Ala. in this direction are AndreAvs !'. 390, 21 So. 346) ; Kelley v. Goodwin, Cox, 42 Ark. 373, and M'Carty v. 95 Me. 538, 50 Ail. 711. Blevins, 5 Yerg. 195. In Andrews r. " A sale of a future crop was held Cox, the plaintiff sold a mare, then impossible in Huntington f. Chis- with foal, reserving title to the foal, holm, 61 Ga. 270; Walter v. Hill, 65 The vendee resold the mare before Minn. 273, 68 N. W. 26. See also birth of the foal to the defendant, an Gravity Canal Co. r. Sisk, Ark. innocent purchaser for value, with- , 95 S. W. 724. out notice of the plaintiflf's rights. " Section 75. The plaintiff was allowed to main- Subject-Mattbe of the Conteact. 167 criticisms which have been made upon the doctrine of potential possession, as applied to crops, apply with equal force when the doctrine is applied to animals. The Sales Act, as has been pre- viously said, aims to abolish the doctrine altogether from the law of sales, whatever may be the rule in regard to mortgages. § 137. Sale of future property amounts to contract. — When a seller undertakes to sell property which he has not, even though the buyer knows that the seller is not the owner, the attempted sale implies an obligation on the part of the seller to transfer the title to the buyer thereafter. That is, though the parties pur- ported to make a sale, if their intention cannot be effectuated fully they actually did make a contract.^'^ This is so provided by sub- section 3 of section 5 of the Sales Act.^* tain replevin for tlie foal. It is to be noticed that at the time of the original sale the foal had been be- gotten and the court deals with the case as one of existing property. In M'Carty v. Blevins, a bargain was made that a foal thereafter to be begotten from a certain mare should belong to the plaintiff. After the birth of the foal the owner of the mare sold both mare and foal to the defendant who did not appear to have had notice of the plaintiff's rights. The plaintiff was allowed to recover. On the other hand in Bates V. Smith, 83 Mich. 347, 47 N. W. 249; Battle Creek Bank v. First Bank, 62 Neb. 825, 88 N. W. 145, 56 L. R. A. 124, the courts seem to have wholly repudiated the doctrine of potential possession or so misunder.stood it as to suppose it applicable only to things already in existence, since they held that such a transferee acquired merely a contract right. Generally, at least as between the parties or those who stand in the same position as the parties, the doctrine of po- tential possession is applied. Hull v. Hull, 48 Conn. 250, 40 Am. Eep. 165 ; Maize v. Bowman, 93 Ky. 205, 19 S. W. 589; Sawyer v. Gerrish, 70 Me. 254, 35 Am. Eep. 323; Fonville V. Casey, 1 Murph. 389, 4 Am. Dec. 559; M'Carty v. Blevins, 5 Yerg. 195. The matter was perhaps consid- ered as carefully as anywhere in Hull V. Hull. In that case the plaintiff had been promised for her compensation as superintendent of a farm all the colts from a certain mare. Subsequently the owner of the stock farm became bankrupt and the question was as to the title of sev- eral colts. It was held that the plaintiff was entitled to them on the ground of the seller's potential pos- session of the property in question. The court also held that the doctrine as to retention of possession after a sale had no application. "A vendor cannot retain after a sale what does not then exist, nor that which is already in the possession of the vendee." This is quoted with ap- proval in Wolcott V. Hamilton, 61 Vt. 79, 17 Atl. 39. =' Benjamin, Sale (5th Eng. ed.) ; Lunn V. Thornton, 1 C. B. 379 ; Bates V. Smith, 83 Mich. 347, 47 N. W. 249; Battle Creek Bank v. First Bank, 62 Neb. 825, 88 N. W. 145, 56 L. R. A. 124. ^ This section follows section 5 of the English Sale of Goods Act, but in the American act the words 168' FOEMATION" OF THE CoNTEACT. §' 138; Equitable effect; of contract to sell — HJokoyd v. Mar- shali — Wihen .parties contract to buy and sell land^.an equitable in- terest in the land, at once passes to the buyer, whlohi equity treats in.various. ways.as, if .it were: a i property: right. It is sometinifia> called an equitable title. This: right arises from',the doctrine: of specific^. performance. , TiieiTature' and. extent of: it are. beyond the scope of this treatise,;, but in recent years a . somewhat similar doc- trine has been applied to some' extent, to personaLproperty. Here, tooi, as well as in^ the cases involving" the: doctrine of- potential, possession, the^ decisions • relate- chiefly to mortgages. The great caaei which settled the. English law is Holroyd i'. Marshall, decided: by. the House of: Lords in 1861j^^' Thougk. earlier English de- cisions had gone far in the same direction, and -Judge ■ Story inj 1843,*" relying on these earlier decisions, had anticipated in this country the result finally , reached in. England,, it was not. until, the judgment in Holroyd- v. Marshall was rendered that it was clearly established that the mere agreement to mortgage personal property subsequently to be. acquired gave the mortgagee a. lien, upon thjs. property: as soon as it .-was acquired, good against all but purchas- ers for value. Lord Campbell, sitting alone, had h.eld that some " novus actus inierveniens" was. needed to. make good ,thje : mortga- gee's right,*^ but the House of- Lords reversed' his decree and held: that ftom the time when the property was acquired an equitable right attached to it which, would prevail over, any one. except pur- chasers for value without notice. This doctrine ^ has- been fre- quently applied in- more recent years in England.** § 139. Theoretical basis for. the doctrine. — The grounds - ixpon. which the doctrine rests are not very clearly stated.: It is. most. "parties purport" is substituted ' for rartio prcecedens- qtice sortiatiir effec- " sellers' purport." As the intention turn inicrvenienfc novo aciu. of the buyer is as important ■ as that "'Collyer v. Isaacs, 19 Ch. D. 342; of the seller, the substituted expres- C6ombe v. Carter, 36 Ch. D. 348; sion is the- more accurate. Tailby V: Offieial, Receiver, 13' A. C. ^'lOiH. L, C. 191. 523; Cumberland' Banking- Co. v. '"Ilitchell r. Winslow, 2 Stbry, Jlaryport Iron Co., [1893] 1 Ch. 630.' 415; Govermnents Stock &> Invest." "2 De-G. F. & J, 596.. Lord Camp-- ment Co. v. Manila' Ry. Co., [1897] bell relied on Lord Bacon's maxim; A. C. 81; In re Yorkshire WoolcomtH^- Licet- dispositio' de ' inlcresse futuro ers' Assoc, [1903] 2 Ch; 284; Nelson" siiiinuHli^, tameti fieri potest decla- & Co. v. Faber, [1903] 2 K. B. 367. Subject- Mattbe of^ the Conteact. 169 commonly; regarded as am- appiication of the principles' of specMc performance, and it ia evident that what' is actually- done is to' enforce -the mortgagor's agreement' that his future- property shall' be- mortgaged or- standj as security. The occasional denial that' the case is one of specific performance- is ■ due partly to the fact • that the' mortgagor of ten uses no words- of' promise, hut purports tO', transfer presently, and: partly to the- faat' that -the court does; not order the execution of any mortgage; But- the mortgagor ■ promises -impliedly, as has.beeni previously showni,^''and the court- does ; not order the/ execution] of: a. mortgage only because it is- unmeeessary. It is essenlial that the mortgagee shall have actually advanced his- money: If: the- contract' is 'wholly executory, the' doctrine ofiHolroydiw. Marshall is not applicablei*^' Specific per-*- formancei- of; an: express contract to mortgage existing - property has been- granted against the- promisor^ though the cases are not: numerous;and, the. reasoning on -which they are based isnot al^ways- cofflclusi've.** The result seems- sound, however; because- damages - arenotan. adequate remedy for a promise to give' security. It must alwav-s be problematical what the- promisee's pecuniary in-- jury' is* The problem depends on the vahie- of the- security and' the, solvency of- the debtor' at the time when the- debt is due* The factors are too indeterminate to make the legal remedy satis- factory. § 140. Ebctent- to"wliicli thecdoetrine' is-admpted. — It is beyond the scope of" this work' to consider at' length the^ possibility of* mortgaging- future goods*** It may be said, hoivever, that in a ma-jority of: the United' States the English doctrine is- accepted' to- some-exten-t, and that inmost jurisdictions where it has been- adopted it is limited more closely than by the general rules applied in. regard to equitable rights generally. All equitable rights-are held invalid, against a hona fide purchaser for value- of the legal 'ti-tle'-without notice of the- equity, but im- this country mortgages of after-acquired property are generally held' invalid against.creditors, w-ho. levy upon the gx)ods. before the mortgageSL .2. Supra,. § 137. v. McDermott,. 69 Neb. 533, 96 N. W. " Taifty f. Official Receiver, 13 A. 23,2. C. 523 543 546. " The matter is dealt -with in Jones "Ames, Cas. Eq. Jur. 61; Spover on, Cliattel Mortgages, and in an, article, 19 Harv. L. Rev. 557. 170 Formation of the Conteact. has taken possession of them.** In England the right of indi- viduals, but not of corporations, to mortgage future goods has been, with some exceptions, prohibited by statute. ^^ The ques- tion of attempted pledges of future property is entirely analogous to the question in regard to mortgages.*^ § 141. Reasons for applying the rule to sales. — It has been assumed that the doctrine that an attempted transfer of future goods would give an equitable property right to the mortgagee is also applicable to agreements to sell.*® If an equitable right arises by virtue of an agreement to sell future goods, it may conceivably be based on either of two grounds: (1) The enforce- ment or specific performance of the contract, resulting in effect in an equitable lien upon the property; (2) the imposition of an equitable lien upon the property — not upon principles of specific performance, but on a broad and somewhat indefinite principle that one who has parted with money or property, expecting a specified return, should be assured, if not that return, then the redelivery of what he parted with. On this ground in England and in some States of this country an equitable lien is given on real estate for the purchase price, both to an unpaid vendor,'" and to a vendee who has paid the price or a portion of it in ad- vance." § 142. Examination of these reasons. — So far as the doctrine of specific performance is concerned it seems clear that the analogy between mortgages and sales fails. It is generally recognized that equity will not give specific performance of a contract for the sale of personal property, and while damages may be an inadequate remedy in case of an agreement to mortgage such property because it is impossible to estimate accurately the amount " The authorities are collected in also Hamilton v. Nat. Loan Bank, 19 Harv. L. Rev. 575. 3 Dill. 2,'?0 ; Post v. Corbin, 5 Nat. "See 19 Harv. L. Rev. 564-566. Bkcy. Reg. 11; Block v. Shaw, 78 "19 Harv. L. Rev. 583. Ark. 511, 95 S. W. 806; Godwin v. " It is so stated by Benjamin, and MurcMson Nat. Bank, 145 N. C. 320, the statement is left unchanged in 59 S. E. 154; Scammon r. Bowers, 1 the latest edition (5th Eng. ed. 134), Hask. 496. which has been the subject of care- ™ Jones, Liens, § 1061 et seq. ful revision by the editors and in "Jones, Liens, § 1105 et seq.; which not a few hasty statements of Re Peasley, 137 Fed. Rep. 190. the author have been corrected. See Subject-Mattee of the Conteact. 171 of the damage, this is not true of a contract to sell goods. There seem to be but two English decisions protecting a buyer who has agreed to buy and has paid for future goods.'^^ These two de- cisions protect the buyer not by enforcing the transfer of the property which was promised him, but by giving him a lien on the property for the restoration of the price. In the first of them the court found apparently that such a lien had been con- tracted for. These decisions are certainly insufficient basis on which to support a doctrine that consideration paid for specified property may be recovered if the property is not transferred and that the property itself -stands as security for the enforcement of the right. It is true that if the promisor becomes bankrupt his estate has both the goods and the price for them, but it would be an extreme doctrine in bankruptcy law to hold that this unjust enrichment of the bankrupt estate justifies specific reparation. Every creditor of a bankrupt estate has parted with his money in return for a promise which has not been kept. All are alike in suffering this injustice, and the fact that what one creditor gave or was to receive is capable of identification seems no reason in natural justice why he should be preferred over others whose money has gone perhaps to swell the estate but who cannot trace what they gave or identify what they were promised in return. § 143. Seller's insolvency should not give equitable jurisdiction. — Another reason has been suggested for giving the vendee of future personalty in some cases at least a lien upon the property on the theory of specific performance. In a few cases^^ the insolvency of the seller has been stated as a possible ground for enforcing specifically a contract to sell goods of a sort not ordinarily within the jurisdiction of equity, and these suggestions have been adopted in one Illinois decision.^ If the seller is insolvent, obviously a "Langton v. Waring, 18 C. B. 23 Cal. 390, 393; Williams v. Car- (N. S.) 315; Young v. Matthews, penter, 14 Colo. 477, 24 Pae. 558; L. R. 2 C. P. 127. Ames v. Witbeck, 179 111. 458, 475, "'Doloret v. Rothachild, 1 Sim. & 53 N. E. 969; Allen v. Freeland, 3 St. 590, 598; Bowling v. Betjemann, Rand. (Va.) 170, 174; Avery v. 2 John. & H. 544; Dilburn y. Young- Ryan, 74 Wis. 591, 600, 43 N. W. Wood, 85 Ala. 449, 451, 5 So. 175; 317. Treasurer v. Commercial Coal Co., "Parker v. Garrison, 61 111. 250i 172: EOEMATION OF THE. CoNTEACT. judgment for damages will not adequately protect the- buyer, but: on the' other hand the lawi regarding delivery and retention of; possession, and also the law of- bankruptcy, materially qualify- if not destroy the right of a court of equity to enforce. the promise*. As to delivery:' and retention of possessiou it is obvious that a^ promise to sell future goods can' surely have no greater: effect"^ than- an actual sale of existing goods, so that at least it may safely be said that wherever the latter transaction- would not- be- valid without delivery against creditors of the seller or against purchasers from him, the effect of' the former transaction, must equally be limited. § 14-4. Effeet of the Bankraptcy Law. — But it- is the law of- bankruptcy that most clearly shows the error of basing an eqiii- tabie- lien on the insolvency of' the vendor. Insolvency is the very circumstance which makes it improper for the seller to carry out' his contract. Even against the seller himself, when no attach- ing creditors or purehase-rs have complicated the situation, it can-- not be permissible for a court of equity to decree specific perform- ance on the gromid' of his insolvency in this- country while a statute like the present Bankruptcy Act is in force; To do so is nothing less than ordering the defendant to commit an act of" bankruptcy ; for, since insolvency is regarded as a necessary basis of the equity, tmtil insolvency there is but a contractual obligation, and to satisfy- such an obligation after' insolvency is an act of bankruptcy under the present statute, as -under the Bank- ruptcy Act of lSG7i Even more clearly, if the rights of creditors or of a trustee in bankruptcy have in fact attached, a court of' equity cannot be justified in attempting, in violation not only of the maxim that equality is equity, but also of the spirit" if not* the letter of a binding statute, to give property to a specific creditor when the only reason for so doing is insolvency, the very state of affairs which is the foundation for proceedings in. bank- ruptcy and the division of: the* property among. all creditors', alike. ^'' § 145. Chos€s in- action. — The doctrines of potential possession and of Holroyd t'. Marshall'® have been applied not only to chat- ^ See Block v. Sha-w, 78 Ark. 511, " 10 H. L. C. 191. 95 S. Wi 806j Subject-Mattbb of the Contkact. 173 tels, but to assignments of debts rand cboses in iaction.'^^ The analogy between choses.in action an.d chattels is, however, not.-so perfect ,as seems to be assumed by the decisions. The. legal title to existing chattels of the mortgagee can be presently transferred, but cannot be to chattels subsequently to. be, acquired without fur- ther action of the parties. This rule is what gives a chance for the doctrine of potential existence land gives also the court of .€quity its 'Opportunity to bring. ;about, sofar as it can, "the same result that would have been brought about . if the chattels .iad been in existence. The legal right even in existing chosss in ; action, however, cannot be transferred. The practical effect of assignment of • saich property is produced, whether the parties ■so state or not, by the authority or power of attorney which the o\vner of the claim gives to the assignee 'to .ooUect it .and keep the proceeds. It is impossible to suggest a reason w:hy the same principles are not .applicable "to choses in ^action subsequently to be acquired. .One :may .make another his attorney to collect a debt which -is coming into existence to-morrow as readily as to "Tailby v. Official .Receiver, 13 A. C. 523; Piillanv. Cincinnati, etc., H. E. Co.,:5'Biss. -237; .Biirdon, etc.. Sugar .Ref'g Co. v. Ferris Sugar Mfg. Co., 78 Fed. Eep. 417; s. c, s«b nom., Burdon v. Payne, 81 Fed. Eep. 663, 167 U. S. 127; Re Marine Construction Co., 14 Am. Bankr.-Rep. 466; Jeasup v. Bridge, 11 Iowa, 572, 79 Am. Dec. 513; Sandwich Mfg. Co. !■. 'Robinson, 83 loA^a, 567, 49 N. W. -1031, 14.L..R. A. 126;, Riddle v. Vow, 98 Iowa, 7, 66 N. W. 1066, 32 L. E. A. 811; Edwards v. Peterson, 80 Me. "367, 14 'Atl. 936, 6 Am. St. 'Eep. .207; Schubert v. .Herzbeig, .65 Mo. App. 578; Williamson v. New Jer- sey Southern, ttc, R. E., 26 N. J. ■Eq. 398; Clay ■ -y. ' East Teim. E, E. Co., 6 Heisk. 421. But a mortgage of future earnings is generally held not good against creditors until the jnortgagee .takes possesision. Galves- ton Eailroad v. 'Cowdrey, 11 Wall. 459, 20 L. ed. 199; Oilman «;. 111. & Miss. Tel. Co:', 91 U. S. 603, 23 L. ed. 405 ; Amer. "Bridge Co. v. Heidelbach, ,'94 U. S. " 798, .24 :L. ed. 144; Sage V. Memphis, • etc., E. R. Co., 125 U. S. 361, 31 L. ed. 694; U. S. Trust Co. V. Wabash ' Western Ey. "Co., 150 V. S. 287, "'307, "37 'L. ed. 1085; Mississippi ■"Valley .A W. Ry. V. U. S. Express Co., 81 111. 534; Ellis V. Boston, etc.R. R. "Co., 107 .'Mass. 1; De Graff !'. Thompson, 24 Minn. 452; N. Y. Security Co. v. Saratoga Gas Co., 159 N". Y. 137, 53 'N. E. "758. In some jurisdictions also the 'right to assign -3. future , claim is denied -when the , claim as not only not due, but there is no existing contract from which the claim is expected to arise. Light- body v. Smith, 125 Mass. ''51 ; Eagan ?;. Luby, 133 Mass. 543; Lehigh Co. V. Woodring, 116 Pa. St. 513, 9 Atl. 58; O'Niel v. Helmke, 124 Wis. .234, 102 N. W. 573, 70 L, K, -A. 338. 174 FOEMATION OF THE CoNTEACT. collect one already in existence. There is, therefore, no reason ■why either law or equity should have treated an assignment of future debts in any different way from an assignment of present debts. The power given the assignee expressly or impliedly should be sufficient to enable him to enforce his rights at law either in the name of the assignor or, under modern statutes, in his own name. The only limits would be fixed by public policy. For, to allow a man to transfer every right he may ever have is perhaps con- trary to sound policy. § 146. Sale of undivided shares — Provisions of the Sales Act. — Sec. 6. UNDIVIDED SHARES.— (1.) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares. (2.) In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in the mass, and though the number, weight or meas- ure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears. This section is not analogous to anything in the English Sale of Goods Act. The reason for the insertion of such a section will appear in the following sections. § 147. Possibility of sale by owner of undivided share in Eng- land. — Doubtless the provisions of the foregoing section of the Sales Act go beyond the English law. It has, however, been settled from a very remote period, not only that personal prop- erty might be OAvned jointly or in common, but that a joint owner or a tenant in common could sell his share. ^^ ""§ 319. Also, as there be tenants ertieg of chattels reals and peisonals," in common lands and tenements, " § 321. In the same manner it is &c., as aforesaid, in the same man- of chattels personals. As if two ner there be possessions and prop- have jointly by gift or buying, a. Subject-Mattee of the Contkact. 175 § 148. Sale of specified quantity from a larger mass — In Eng- land. — Though an undivided share of personal property may thus be assigned in En glaaid, the assignment "^ -ii^ £g£^%d. Q^Mr--i^ of goods from a larger m ass will not make ffie grantee a tenan t in common of the goods. If a mass of goods is not all of the same kind, or at least if it is not so treated for the purposes of the bargain, it is obvious that this conclusion is unavoidable. If, for instance, a lot of wood of varying quality is lying in a mass, the sale of ten cords of a specified quality to be taken from the lot will not make a tenancy in common between the buyer and other owner of the wood. That is clearly not the intention of the par- ties. The buyer desires no interest in the wood, as a whole, nor in any wood except that of a particular quality. In many cases, how- horse or an ox, &e., and the one grant that to which him belongs (of the same horse or ox) to another, the grantee, and the other which did not grant, shall have and possess such chattels personals in common, &c. And in such cases, where divers persons have chattels real or per- sonal in common, &c., and by divers titles, if the one of them dieth, the others which survive shall not have this as survivor, but the executors of him which dieth shall hold and occupy this with them which sur- vive, as their testator did or ought to have done in his lifetime, &c., because that their titles and rights in this were several, &c." Litt. Tenures (about 1480). "Things personal may belong to their owners, not only in severalty, but also in joint-tenancy and in common, as well as real estates. They cannot, in- deed, be vested in coparcenary; be- cause they do not descend from the ancestor to the heir, which is neces- sary to constitute coparceners. But if a horse or other personal chattel be given to two or more, absolutely, they are joint tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements. Litt., § 281 ; 1 Vern. 482. And, in like manner if the jointure be severed, as, by either of them selling his share, the vendee and the remaining part owner shall be tenants in common, without any jus accrescendi or survivorship. Litt., § 321. So, also, if lOOi be given by will to two or more, equally to be divided between them, this makes them tenants in common; 1 Equ. Cas. Abr. 292, as, we have formerly seen, p. 192, the same words would have done in regard to real estates. But, for the encouragement of husbandry and trade, it is held that a. stock on a farm, though oc- cupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not a.s joint property, and there shall be no survivorship therein. 1 Vern. 217." 2 Blackstone Comm. 399. It is provided in section 1, both of the English act and of the Ameri- can that one part owner may sell his share to another part owner, but this it will be observed does not cover a sale to a third person. .176 FoEMATIOlSr OF THE CoKTBAGT. ever, the mass of .goods . is of identical character throughout, as wheat, or oil. Even in such a case the view of the English court , is that an agreement to sell a specified quantity of the .goods can transfer no property -right to the buyer. ^^ § 149. .Eeason for the English view and its validity-. — The reason for the English rule denying the; possibility of transferring ; title to a. specified portion .of a mass is based on fogic rather than law. In the nature of the case it is impossible to transfer Ownership necessarily im- It is, there- title to something wholIy~unspeci1ied7 plies specific , property as the subject of ownership. .fore, impossible. literally to o\\'n ten tons of oil out of forty tons "Wallace r. Breeds, 13 East, .522, la bargain was made to sell fifty tons of Greenland oil, " allowance for foot dirt and water as customary." An order was given by the sellers to the buyers for delivery of the " fifty tons ex ninety tons/' This order "Was sent to the 'wharfingers but nothing was done in pvirsuan<^ of it until after the -sellers failed, when the order was ■countermanded by the ■ selleTS. It was held that the prop- - erty had not passed. The court dis- tinguished Whitehouse i'. -Frost, 12 East, 614, stated below, on the ground that in Wallace r. Breeds, various -acts ■ must be done by the -seller in order to put the oil in a ■deliverable condition. In Bosk r. Bavis, 2 M. & S. 397, the bargain was for ten tons of 'flax, " ex Vrow Maria." Tlie seller had abo-at -eigh- teen tons of flax of this ship-ment lying at the defendant's -wharf. It ■was' necessary to weigh arid break -up 'the -mass -in o-rder to --sepaTa-te ten tons. This had not been done and it •was held that title had not pas-sed. Cases involving ' the same principle are: Austen v. Craven, 4 Taunt. ■644, White r.' Wilks, "5 Taunt. 176; '■Bhepley r. Da-vis, 5 Taunt. 617; Boswell r. Kilborn, 15 Moo. P. C. .^09 ; -Snell r. Heighten, 1 Cab. & & Ell. 95. Tlie case of Whitehouse v. Erost, 12 East, 614, is regarded as overruled by the=e decisions. In that case the bargain was for the sale of ten tons of oil in- a cistern containing forty tons of oil. The seller had himself bought these ten tons -while part of a larger mass in the hands of his vendor. The oil remained throughout the transaction stored by the original seller in the same cistern containing forty tons. It was held' that title had passed to the second buyer. It is to be noticed in this case that' there was clear evi- dence of an intention to pass title, •sometMng -which did not exist in most of the decisions previously re- ferred to. In Whitehouse v. Frost, not only had the bailees accepted the order to deliver to the second p-ur- chaser, bui it was expressly" provided in the contract of sale to him that the oil should be at his risk. Jlore- over, it was the custom to charge the purchaser in proportion to the quantity of oil bought by him -with rent for the same -until delivered. As the case is regarded as overruled (Benjamin, Sale (5th Eng. ed.), 338, note '4), it is evident that by the Engli'sh law it is impossible to make a transfer of title vmder the circum- stances suggested in the case, even though the parties so intend. Subjegt-Mattee oe the Contract. 177 &I1 contained in one cistern. It muat be conceded that this reasoning is sound so far as concerns the ownership of ten tons, as snch. If ten tons really were owned by the buyer, it would ^be fair to i nquire which ten tons he owned, an inquiry which could not be answered satisfactorily. If the answer '"' any ten' tons" were. made, the answer itself would be an assumption that ^^%„^9-i5£t_P£^e § 154. Elevator cases. — The principles referred to in the pre- ceding sections have received their fullest application in the case of grain elevators. It is the practice to mingle grain as it is brought into the elevator with grain of similar kind and quality, previously delivered by other owners. The authorities cited in the previous section make it clear that there is no reason why the de- positor, by consenting to such practice, should lose the property in his grain unless it is so intended. It is the further practice of the elevators, however, to deliver from the mass, as called upon by holders of the warehouseman's receipts for the grain, such quantities as the receipts call for. The deliveries of grain to and by the warehouseman may result in the entire contents of the elevator being chauged several times over before a particular de- positor reclaims the grain which he deposited, so that we must deal with a situation where not only has the plaintiff's property been miiigled with other property so that its identity is confused, but also the whole mass with which it was confused has given place to another mass of goods of the same sort. Even in this case, how- ever, there seems no reason why the intention of the parties cannot be effectuated. That their intention is that the depositor shall re- tain a property right, there can be little doubt. It is the duty of the warehouseman to keep in his elevator suificient grain to meet B. 885, ia also worth noticing. In this feature of the case is not dia- that case a seller, having agreed to cussed the decision seems to assume sell a certain amount of barley from that the buyer did not lose when a specific pile, actually appropriated tne sacks were emptied the property to the buyer part of the barley by which he had previously acquired filling sacks which the buyer had when they were filled, sent. The seller becoming bankrupt "'Ryder r. Hathaway, 21 Pick. 298, emptied the grain contained in the 305; Moore r. Bowman, 47 X. H. sacks upon the pile confusing it with 494, 501; Pratt v. Bryant, 20 Vt. the remaining barley. It was held 333. that the property in the barley con- " Bryant r. Ware, 30 Jle. 295. tained in the sacks passed to the "' Inglebright r. Hammond, 19 buyer when the sacks were filled and Ohio, 337, 53 Am. Dec. 430. See the buyer was allowed to recover the also the numerous elevator cases valu£ of the goods from the assignee cited below. itt b nkruptcy of the seller. Though Subject-Mattee of the Conteact. 181 all autstanding receipts.*® The American cases clearly recognize the validity of the custom in use in regard to grain elevators, and give effect to the intention of the parties that the depositor shall ■retain title.''' The warehouseman is thus a bailee to keep the grain with power to change the bailor's ownership in severalty into a tenancy in common of a larger mass and back again, and with a continuous power of sale, substitution, and resale. At any given moment, however, all the holders of receipts for the grain are ten- ants in common of the amount in store, the share of sjieh being proportionate to the amount of his receipts as compared with the total number of receipts outstanding.*^ " This is so provided by statute in some States where the business of grain elevators is a very important one, but the same result is reached without a statute. Young v. Miles, 20 Wis. 615, 23 Wis. 643. The prac- tice ot charging storage for grain de- posited in itself indicates not only that more than a contract right is contemplated, but also that the ware- houseman is to keep on hand, if not any specific grain, yet as much grain as the receipts call for; otherwise it would be improper to charge for storing that amount. '"■'Eahilly v. Wilson, 3 Dill. 420; National Bank of Pontiac v. Langan, 28 Til. App. 401; Woodward v. Seamans, 125 Ind. 330, 25 N. E. 444, -21 Am. St. Rep. 225; Arthur i;. Chicago, Eook Island & Pac. Ry., 61 Iowa, 648, 17 N. W. 24; Moses v. Teetors, 64 Kans. 149, 67 Pac. 526, 57 L. R. A. 267; Lcdyard v. Hibbard, 48 Mich. 421, 12 N. W. 637, 42 Am. Rep. 474; Hall v. Pillsbury, 43 Minn. 33, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St. Eep. 209; James V. Plank, 48 Ohio St. 255, 26 N. E. 1107; McBee r. C^asar, 15 Or. 62; Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760; Young f. Miles, 20 Wis. 615, 23 Wis. 643. See also Bretz v. Diehl, 117 Pa. St. 589, 11 Atl. 893, 2 Am. St. Rep. 706. Compare South Austra- lian Ins. Co. V. Randell, L. R. 3 P. C. 101. Statutes in Kentucky, Massa- chusetts, Minnesota, and perhaps other States have given the force of positive enactment to this view so far as public warehouses are con- cerned. The German Commercial Code has a provision to the same effect. Handelsgesetzbuch (1897), 419. In Rahilly v. Wilson, 3 Dill. 420, it was held that the property passed to the warehouseman, but he was not obliged to keep an amount on hand equal to outstanding re- ceipts. He might, and frequently did, pay in cash the value of the grain which he had received, instead of returning the grain itself when the receipt was presented. To the same effect is Lyon v. Lyon, 106 Ind. 567, 7 N. B. 311; Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69. For a full discussion of the principles involved in the storage of grain in elevators, see an article in 6 Am. L. Rep. 450, which, though not signed, is known to have been written by 0. W. Holmes, now an associate justice of the Supreme Court of the United States. «" 6 Am. L. Rep. 450 ; Benjamin, Sale (5th Eng. ed.), 340. 182 FOEMATION OF THE CoNTBACT. § 155. Sale of a portion of a mass. — It has been shown that ownership by several persons may exist in property of undeter- mined amount, confused in one mass ; though the aliquot share of each owner can only be stated by the measurement of the whole mass. Such ownership is in the nature of a tenancy in common. It must follow that this right of the several owners is the subject of sale, for as has been seen,"*''' one joint owner or tenant in common can sell his share. Indeed the receipts issued by ware- housemen for grain in elevators, receipts which indicate owner- ship of a portion of a mass, are the subject of sales to an enormous amount every day, and other staple products are dealt with in a similar way to a lesser extent. Furthermore, since the law allows ovraership in the nature of a tenancy in common in a mass of an undetermined amount, no valid reason in logic and no rule of law can be suggested which would prevent parties from giving rise to a similar situation when the mass of goods belongs wholly to one party at the outset. If A. may pour, with B.'s consent, ten bushels of grain in B.'s bin, which contained an undetermined amount without losing a property right, B. must surely be able to give A. just such a property right if A. had no grain originally and all belonged to B. If A.'s title to ten bushels, when he owned that amount originally, can be, and is translated when he mingles' it with B.'s grain into the equivalent of ten bushels, a fraction of the mass, ten being the numerator of the fraction and the unde- termined quantity of the whole mass, which may be called x, be- ing the denominator there is no reason why a similar translation may not be made when B. agrees to sell A. ten bushels from a mass belonging to B. and the parties intend that the property shall pass at once. § 156. The weight of American authority supports this view. — The__£reyailing American doctrine supports the views which have been expressed.*' A limitation of the doctrine, although obvious, <«' Supra, § 147. 413; Watts v. Hendry, 13 Fla. 523; •'Aderholt v. Embry, 78 Ala. 185; Phillips i. Ocmulgee Jlills, 55 Ga. Horr V. Barker, 8 Cal. 603, 11 Cal. 633; Cloke v. Shafroth, 137 111. 393, 393, 70 Am. Dec. 791; Smith v. 27 N. E. 702, 31 Am. St. Rep. 375; Friend, 15 Cal. 124 (but see later Welch v. Spies, 103 Iowa, 389, 72 California decisions in next note but N. W. 548 ; Piazzek v. White, 23 one) ; Chapman v. Shepard, 39 Conn. Kans. 621, 33 Am. Eep. 211; Bailey Subject-Mattek of the Conteact. 183 is sometimes lost sight of. Ownership in pers onal property is no t tra nsferred unles s the parties so intend. So that the only effect_ af the decisions just cited is that if the parties intend to pass title. the law will effect uate their in tention. In proving this intention, usage is frequently very important. The whole practice in regard to grain elevators, for instance, shows the intention of depositors to retain a property right and of buyers and sellers of receipts for grain to transfer property in the grain by dealing with the re- ceipts, even though the grain referred to therein is mingled in a mass of undetermined and varying quantity.'''' The effect of usage , however, can be no more than to supply the place of evi- dence of intent to tra nsfej r_title.; If it were either contrary to the policy of the law or impossible as matter of logic to transfer the property in goods mingled in a mass, usage could not make it r. Long, 24 Kana. 90; Waldron v. Chase, 37 Me. 414, 59 Am. Dec. 58 (this case though not professedly ■overruled by later cases seems to be at least so qualified as to have little authority) ; Carpenter v. Graham, 42 Midi. 191, 3 N. W. 974; Merchants' Bank v. Hibbard, 48 Mich. 118, 11 X. W. 834, 42 Am. Rep. 465; Mac- kellar v. Pillsbury, 48 Minn. 396, 51 N. W. 222; Kaufmann v. Schilling, 58 Mo. 218; Hires v. Hurff, 39 N. J. L. 4; s. c, sub nom., Hurflf v. Hires, 40 N. J. L. 581, 29 Am. Rep. 282; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Hoyt v. In- surance Co., 26 Hun, 416;'0'Keefe v. Leistikow, 14 is. Dak. 355, 104 N. W. 515, 9 Am. & Eng. Annot. Cas. 25; Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426; Urownfield v. Johnson, 128 Pa. St. 245, 18 Atl. 543, 6 L. R. A. 48; Pleasants v. Pendleton, 6 Rand. 473,- 18 Am. Dec. 726; Young v. Miles, 20 Wis. 615, 23 Wis. 643; Coffey V. Quebec Bank, 20 U. C. C. P. 110. The case of Welch v. Spies, 103 Iowa, 389, 72 N. W. 548, presents an unusual complication in that the amount vphich the buyer was to take was not exactly fixed by the contract. Tliere were 2,300 bushels of corn contained in two cribs. The plaintiff agreed to sell the defendant not less than 1,600 bushels, nor more than 2,300 bushels, at a given price per bushel. The plaintiff reserved the right to retain 200 or 300 bushels if he needed them, and a third person was entitled to fifty bushels. The jury found that there was an intent to transfer title, and the court held that as to 1,600 bushels, at least, the title had passed. There seems no reason to question the correctness of the decision. The fact that the exact amount which the plaintiff was to buy had not been determined was doubtless evidence that title was not intended to pass until the amount was fixed, but it was entirely possible for the parties to agree that title to the minimum amount should pass at once. '° See a, discussion of the effect of iisage in Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426; Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69. 184 FOUMATION OF THE CONTRACT. either legal or possible. Some evidence of intent to transfer title is essential wiether the evidence be furnisTi'ed by usage o r otherwise. It is important to bear this in mind in any examina- tion of the decisions which are usually cited as opposed in princi- ple to what has been called the prevailing American doctrine. Many of these decisions, in fact, decide, not that the property could not pass had the parties so intended, but that it did not pass under the circumstances, disclosed by the evidence. Sometimes the courts themselves have not clearly kept in mind the distinction between the ]30ssibility of transferring the property and the in- tention to transfer it." Even if the parties indicate an intention to transfer the property, if the seller is not at the time of the bargain owner of the mass it is obvious that the property cannot 79 pass. § 157. Incidents of the tenancy in common. — In Kimberly v. Patchin,^^ the court expressed a doubt whether the ownership of " Fry !'. Mobile Sav. Bank, 75 Ala. 473 (in «o far as this case decides anything more tlian that there was no intention to transfer the property, it is overruled by Aderholt V. Embry, 78 Ala. 185) ; Carpenter V. Glass, (17 Ark. 135, 53 S. W. 678; lIcLaughlin r. Piatti, 27 Cal. 451 {compare Cal. Civil Code, § 1140, providing for the transfer of title when parties so agree, and the thing itself is identified whether it is sep- arated from other things or not. See also Blackwood r. Cutting Packing Co., 76 Cal. 212. 18 Pac. 248, Am. St. Rep. 199) ; Commercial Bank i'. Gillette, 90 Ind. 268, 46 Am. Rep. 222: Courtright r. Leonard, 11 Iowa, 32 (in so far as this ease decides anything more than that there was no intention to transfer the property it i.s overruled by Wclcli /■. Spies, 103 Iowa, 389, 72 N. W. 548) ; Ferguson V. Northern Bank, 14 Bush, 555, 29 Am. Rep. 418; :\rercer Bank r. Hawkins, 104 Ky. 171, 40 S. W. 717: Morrison r. Dingley, 63 Me. 553; Lawry v. Ellis, 85 Me. 500; Reeder V. Machen, 57 Md. 56; Ropes v. Lane, 9 Allen, 502; Scudder r. Worcester, 11 Cush. 573; Xew Eng- land Wool Co. V. Standard Worsted Co., 165 Mass. 328, 43 X. E. 112, .^2 Am. St. Rep. 516 (this case contains an implication that if the buyer was given the right to sever, the prop- erty would pass. If so, is is ])ossible for the property to pass though goods are not separated) ; Waldo v. Belcher, 11 Ired. 609 (and see Blakeley r. Patrick, 67 N. C. 40, 12 Am. Rep. 600; Dunkart r. Rine- heart, 89 N. C. 354) ; Woods c. Mc- Gee, 7 Ohio, Pt. II, 127, 30 Am. Dec. 202 (barrels of flour) ; (but usage may modify this rule, Newhall c. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426. The later case necessarily de- cides that it is possible for the parties eifectively to agree that title shall pass) ; Robbins r. Chipman, 1 U"ah, 335, 2 Utah, 347 (a contract to sell sheep from a flock). (Com- pare later Utah decisions cited in § 158, note.) "Jackson v. Hale, 14 How. 525; Foot r. Marsh, 51 N. Y. 288. " 19 N. Y. 330. Subjbct-Mattee of the Cokteagt. 185 ■die different owners of property confused in a mass was that of tenants in common. The only reason for this doubt, however, was because the court did not think the old rule of the common law forbidding one tenant in common to bring an action for the pos- session of the common property was applicable to such a case as that with which it had to deal.'* In fact the buyer and seller must be tenants in common after the sale and before the property is separated. If title passes there is no separate property of which they can be owners in severalty and no third kind of ownership besides ownership in common and ownership in sever- alty seems conceivable. There is no difficulty, however, in holding that in regard to a tenancy in common of goods which are fungible or which have been so treated by agreement, there is a right of severance by either party unless the contract provides otherwise. The doctrine of the early common law had reference to indivisible things, such as a horse, and should have no application to the case of property which derives its use by being severed, and in regard to which severance is expected by the parties. Accordingly, not only is severance J jj either party proper, but severance may be made by an action of replevin brought by the party dep rived of the possess ioiL.of Ms-.shar e_, He i s not confined to an action for" damages. '^^ It necessarily follows from the fact that the property is transferred to the buyer that the risk of his share is upon him. If, therefore, all the goods are destroyed, he must pay the price, and if he has already paid it, he cannot recover it.'* If the loss is '* " It is unnecessary to decide parts of the whole. As neither could whether the parties to the original maintain an action against the sale became tenants in common. If other for taking pcfsaession merely a tenancy in common arises in such of the whole, more clearly he cannot cases, it must he with some peculiar if the other takes only the quantity incidents not usually belonging to which belongs to him." that species of ownership. I think '"Lyon v.. Lenon, 106 Ind. 567, 7 each party would have the right of N. E. 311; Piazzek v. White, 23 severing the tenancy by his own act; Kans. 621, 33 Am. Rep. 211; Pitman that is, the right of taking the por- v. Baumstark, 63 Kans. 69; Hall v. tion of the mass which belonged to Pillsbury, 43 Minn. 33, 37, 44 N. W. him, being accountable only if he in- 673, 7 L. R. A. 529, 530, 533, 19 vaded the quantity which belonged Am. St. Eep. 209; Kaufmann v. to the other. But aissuming that the Schilling, 58 Mo. 218; Young v. case is one of strict tenancy in com- Miles, 20 Wis. 615, 23 Wis. 643. mon, the defendant became the owner ™ Welch v. Spies, 103 Iowa, 3S9, of 6,000 and the plaintiffs of 249 72 N. W. 548, 186 EOEMATION OF THE CoNTKACT. partial only, the loss must fall upon the several owners in propor- tion to the shares owned by each." It has been held in an Indiana " The question was fully discussed in Brown r. Nortlicutt, 14 Or. 529, 13 Pac. 485. The court in that case said, of the wheat in question: " There was only about two-thirds enough to pay the depositors, in- cluding the appellant, the amounts they had respectively stored there; and the wheat not having been kept separate, the deficiency or loss, from whatever circumatances it may have occurred, if not occasioned by the fault of any of them, must fall upon all in the proportion which the amount of wheat each had deposited bore to the whole amount deposited. This rule is based upon a maxim that all courts are bound to observe — the maxim that equality is equity — and it certainly could have no better foundation. The authorities produced at the hearing by the respondents' counsel show that it has been recognized and approved by courts of the highest authority. See Gushing v. Breed, 14 Allen, 376, 380, 92 Am. Dec. 777; Sexton v. Graham, 53 Iowa, 192, 193; Dows v. Ekstrone, 3 Fed. Rep. 19 ; United States r. Cask of Gin, 3 Fed. Rep. 20; Dole v. 01m- stead, 36 111. 150, 85 Am. Dec. 397. In Gushing !'. Breed, supra, the court held that where several parties had stored various parcels of grain in an elevator, and it was put into one mass according to usage, to which they must have been deemed to have assented, they were tenants in com- mon of the grain, and that each was entitled to such a proportion as the quantity placed there by him bore to the whole mass; and in Dole v. 01m- stead, supra, the court held the same doctrine, and held, further, that the grain being thus owned in common, the several owners were compelled to sustain any los.3 pro rata which might occur by diminu- tion, decay, or otherwise; and that where the holder of a receipt had re- ceived the full quantity, or a larger proportion than his ratable share ip view of the deficiency, he would be bound to account for such excess re^ ceived by him according to his pro- portion of the loss. This is un- doubtedly the correct rule, as it is founded upon common justice. The result of the rule is simply this : A. puts wheat in a warehouse for stor- age; B., C. and others, severally, have wheat there for the same purpose. It is all mingled together, with the presumed consent of all parties. They each necessarily own the sev- eral amounts of wheat they have there, but neither can identify his own, but it is in common ; and if a loss occurs by casualty, or the ware- houseman wrongfully abstracts a part of the general lot, it must necessarily be borne by the depositors pro rata. But to render A. liable to contrib- ute to the loss, it must occur after he stored his wheat; he would not be affected by any deficiency which occurred prior to his deposit of his wheat. Former deficiencies would have to be borne by B., C. and others, who had wheat there when it oc- curred. A.'s amount of wheat would be the proportion it bore to the whole amount actually in store when he placed his there, not to the amount it would be with what B., C. and others had really put there." It further appeared in the case that subsequently to the creation of the deficiency, one of the parties had laid aside for him by the warehouse- man the full amount of wheat which he had deposited. When this was , , , Subject-Matteb o¥ the Conteact. 187 case,™ that where depositors of wheat in an elevator knew that it was mingled with wheat purchased by the elevator company and that the company made sales from the mass, they were estopped to assert against a purchaser from the elevator company ownership of the wheat. This doctrine has not been followed elsewhere and is oppossed to Minnesota decisions,^^ but it seems sound in any case where the dej^ositor expressly or impliedly authorizes sales by the warehouseman. § 158. Selection. — The cases which have been discussed must he carefully distinguished from cases in which the seller is to select a portion of the mass from the remainder and appropriate the selected portion to the buyer. Such a bargain necessarily im- plies that the contents of the mass are regarded by the parties as differing in value. It would be a direct violation of the terms of such a bargain to say that it was in effect an agreement to create done the depositor was ignorant tliat there was any deficiency. The court held that the setting aside of the wheat did not increase tlie depositor's riglits and apparently even had the wheat been delivered to him, he would have had no right to retain it all. See also O'Neal v. Stone, 79 Mo. App. 279; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. . 623; Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69, 75; Spence v. Union Marine Ins. Co., L. R. 3 C. P. 427. In Minnesota it has been stated more than once that where the warehouse- man deposits his own grain with that of others, he is entitled only to the excess in the elevator over and above the amount called for by his receipts. Hall v. Pillsbury, 43 Minn. 33, 7 L. E. A. 529, 533, 44 N. W. 673, 19 Am. St. Rep. 209; Herriek V. Fames, 78 Minn. 475, 479, 81 N. W. 526. In these cases, however, the court did not have in mind the question of accidental destruction, and except in such a case the state- ment is accurate. ™ Preston v. Witherspoon, 109 Ind. 457, 9 N. E. 585, 58 Am. Rep. 417. "Hall V. Pillsbury, 43 Minn. 33, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St. Rep. 209 ; Jackson v. Sevat- son, 79 Minn. 275, 278, 82 N. W. 634. In Hall v. Pillsbury, the court said : " Much argument has been ex- pended to show the inconvenience to commerce in grain if in such cases the owner of the grain may, notwith- standing a wrongful sale by the warehouseman, follow the grain into the hands of the purchaser. As touching the matter of convenience, the argument has much force. It might tend greatly to facilitate trafiic in grain if we had, in respect to it, such a rule as in England per- tains to property sold in markets overt. But there is no such rule in this country. The general rule is that an owner of personal property cannot be deprived of his right to it through the unauthorized act of another. That rule applies as well to grain or other property on deposit for the purpose of atoring as to property in any other situation." 188 FOEJIATION OF THE CoXTEACT. a tenancy in common in the mass.^° If, indeed, the sale relates to all goods of a certain kind in a mass, the property in those specific goods may pass. The case is not then one of nnspeci- fied goods. Even in such a case, however, if the seller is to make the separation, under the doctrine that where anything remains to be done l>y the seller the property is presumed not to pass,^^ it will lie presumed here that the property does not pass until the separa- tion is made; but this will be only a presumption of intention, and if a contrary intention is shown it will govern. On the other hand, if all the goods were delivered to the buyer and he was tc make the separation, this presumption would not be applicable and the property in those -goods in the mass, to which the bargain related, would pass at once to the buyer before separation.*" If the terms of the bargain were not sufficient to enable a competent person to determine to what portion of the mass the bargain re- lated, it would seem impossible, however, for the property to pass until the separation was made.®^ " Cases of this sort are jMcFadden I. Henderson, 128 Ala. 221, 26 So. C-IO (contract for the sale of 1,500 bales of cotton, but nothing below low middlings and bales that were sandy, seedy, or false packed were to be excluded); Hahn r. Fredericks, 30 Mich. 223, 18 Am. Eep. 119 (the con- tract for the sale of tnenty cords of hard wood to be taken from a "pile containing several hundred cords of mixed hard and soft wood) ; Woods r. Mcfiee, 7 Ohio, Pt. 11, 127, 30 Am. Dec. 20i--feantT£tct~fDT — tire~sat« "af~ 6etrT)arrel3 from a larger quantity in which the barrels varied in value from twenty-flve cents to fifty cents) ; Hutchinson v. Hunter. 7 Pa. St. 140 (contract for sale of 100 barrels of molasses, part of tt specified larger stock, but the barrels were of un- equal contents and unequal value) ; Anderson r. Crisp, 5 Wash. 178, 31 Pac. 03S, 18 L. R. A. 419 (contract to sell 162,000 merchantable brick out of a kiln in which all the brick were not merchantable). See also Foster v. Lumbermen's Mining Co., 68 Mich. 188, 36 N. W. 171; Cass r. Gunnison, 68 Mich. 147, 36 N. W. 4.5 ; Warren r. Buckminster, 24 N. H. 336; Foot r. Marsh, 51 N. Y. 288; Dunlcart r. Eineheart, 89 X. C. 354; 'Steaiibli r. Blaine Bank, 11 Wash 426, 39 Pac. 814. " See infra, § 265. " Lamprey f. Sargent, 58 X. H. 241. See also Croze v. St., Mary '9 Mineral Land Co., — Mich. — , 107 N. W. 313; Barber r. Andrews, — R. I. — , 69 Atl. 1. "^-I-B-lamgrey v. Sargent, 58 N. H. 241, the buyer was to select the hard brick from a qualltito' of brick of different kinds. If the^B^eaning of this bargain was that the could take any brick that he deemed sufficiently hard for his purpose, and could reject any brick that he did not want, it is obvious that no goods were identified at the time of the bargain of which it is possible to predicate ownership. Nor was the buyer tenant in common of all the brick, foT it was only the hard brick with which he was concerned. Subject-Matteb. of the Coutkact. 189 § 159. What are fungible goads ? — The term " fungible goods " has been used in the civil law to define goods of which each parti- cle is identical with every other particle — such a,s grain, oil, wine. It has been adopted in our law and the doctrine in regard to the sale of a portion of a mass, which has just been considered, applies primarily to goods of this character.. It is obvious that if a mass of goods contains articles of varying and differing quali- ties, that one who contracts for a given number of the objects does not expect and will not be satisfied to have, in lieu of what his contract specifically calls for, a tenancy in common in the whole mass. Such a tenancy in common will not accurately translate the bargain which he made. ^Nevertheless, the modern American doctrine in regard to sales of a portion of a mass has been fre- quently applied to goods not strictly fungible in their nature. In- deed, the earliest case in which the doctrine was applied^* related to barrels of flour. Though flour of the same grade is fungible in the strictest sense, barrels of flour are not necessarily so. Other cases also have applied the doctrine to barrels.®^ So it has been ap- plied to bales of cotton,^^ and even to cattle or sheep.*^ It is ob- vious that all cattle are not alike, and that some cattle in a herd "Pleasants v. Pendleton, 6 Rand. identity of the herd is changing and 473, 18 Am. Dee. 726. that the wool and young animals are " Horr V. Barker, 8 Cal. 603, 11 not all to belong to the lessor, but a Cal. 393, 70 Am. Dec. 791 ; Carpenter specified quantity and number are to r. Graham, 42 Sfich. 191, 3 N. W. belong to him. As the rest must be- 97'4; Mackellar v. Pillsbury, 48 long to the lessee, and as there is Minn. 398, 51 N. W. 222. no way indicated in which the iden- '"Aderholt v. Embry, 78 Ala. 185; tity of the animals belonging either Phillips V. Ocmulgee Mills, 55 Ga. to the lessee or to the lessor is to 633 be determined, the parties must "Watts V. Hendry, 13 Fla. 523. necessarily be tenants in common, if A class of cases suggesting grain their intention is to be effectuated, elevator cases has arisen in some of It has been decided that the lessor the western: States, in which cattle retains the ownership in these cases, or sheep are " leased," as the term and that the transaction is a bail- is used by the owner, to another at a. ment and not a sale. Robinson v. rental of so many pounds of wool, Haas, 40 Cal. 474; Woodward r. and so many of the young every year. Edmunds, 20 Utah, 118, 57 Pac. 848; It is expressly provided,, or at least Turnbow v. Beckstead, 25 Utah, 4G8, strongly implied, from the terms 71 Pac. 1062; Wetzel ti. Bank, 30 used in the lease, that the lessor Utah, 62, 83 Pac. 570; Rich v. retains title to the flock or herd. It Utah Bank, 30- Utah, 334, 84 Pac. will be observed, however, that the 1105. 190 FOEMATION OF THE CoNTEACT. are more valuable than others, but in the cases under consideration the parties virtually agreed to act on the assumption that all were alike, and it vpill be seen that this is the really essential thing. If parties to a bargain proceed on the assumption that all the con- stituents of the mass or bargain are identical, and are willing to regard all as alike for the purpose of determining their rights, it is an exact translation of their bargain to regard them as tenants in common. The American decisions just referred to are, there- fore, justified. § 160. Destruction of goods sold — Provisions of Sales Act. — Sec. 7. DESTRUCTION OF GOODS SOLD,— (1.) Where the parties purport to sell specific goods, and the goods with- out the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void. (2.) "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."* § 161. A sale of specific goods is void if goods not in existence. — In regard to the correctness of the principle of law stated in the first subsection there can be no doubt. There are not many de- cisions exactly in point,®® but no question has ever been raised iu "Subsection (1) corresponds to land r. Turner, 7 Ex. 20S; Gibson section 6 of the English act, except r. Pelkie, 37 Mich. 380; Bates r. that "the parties purport to sell" Smith, 83 Mich. 347, 47 N. W. 249. has been substituted in tlie first line In the case first cited the parties for the words " there is a contract purported to make a sale by means for the sale of," and " agreement " of bills of lading of a cargo of corn, is twice substituted in the last line, In fact at the time the bargain was for " contract." The other provisions made the corn, owing to fermenta- of the American section are new. tion, rendering its future preserva- " Hastie v. Coutrier, 9 Ex. 102 ; tion impossible, had already been 8. c, sub nom., 5 H. L. C. 673; Strick- sold at an intermediate port by the Subject-Mattee of the Conteact. 191 regarji to the result, though different reasons have been suggested for treating the sale as void. Sometimes the result is put upon the ground of impossibility, sometimes upon the ground of mis- take, and sometimes on the lack of mutual assent owing to the mistake. So far as the existence of a sale is concerned, that is, the actual transfer of title to property, of course there is absolute impossibility. The real question, however, is whether the buyer and seller are excused from all liability. Even though there is no sale the seller may be liable on an obligation of warranty or contract,^'' and similarly the buyer might be liable on an obliga- tion to pay the price. ISFo such obligation, however, exists on either side. The seller is excused from any such obligation by the doctrines both of impossibility and mistake. As the obligation would relate to a specific thing, the nonexistence of the thing, without his fault, excuses him.®^ Even apart from the doctrine of impossibility the mutual mistake under which the parties labored would excuse the seller from any obligation. On the part of the buyer there is no question of impossibility, it is entirely possible ship's captain. It was held that the bargain was void and the purchaser not bound for the price. In Strick- land V. Turner, the parties pur- ported to sell an annuity payable during the life of a third person. At the time the bargain was made the third person had already died, so that no annuity existed. It was held that the buyer could recover the price paid. Similarly in Gibson V. Pelkie, the bargain related to a judgment which did not exist. In Bates V. Smith, Long, J., said : " If it appears that the subject-matter of a contract was not, and could not have been in existence at the time of such contract, the contract itself is of no effect, and may be disregarded by either party." " See supra, § 137. "•Taylor v. Caldwell, 3 B. & S. 826. See also The Tornado, 108 U. S. 342, 2 S. Ct. 746, 27 L. ed. 747; Arthur v. Blackman, 63 Fed. Kep. 536; Fresno Milling Co. v. Fresno C. & I. Co., 126 Cal. 640, 59 Pac. 140; School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Walker v. Tucker, 70 111. 527; Price V. Pepper, 13 Bush, 42; Pinkham v. Libbey, 93 Me. 575, 45 Atl. 823, 49 L. R. A. 693; Wells v. Calnan, 107 Mass. 514, 9 Am. Eep. 65; Thomas V. Knowles, 128 Mass. 22; Gilbert & Co. V. Butler, 146 Mass. 82, 15 N. E. 76; Goldman v. Rosenberg, 116 N. Y. 78, 22 X. E. 259; Stewart V. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215; Young v. Leary, 135 N. Y. 569, 32 N. E. 607; Dolan V. Rodgers, 149 N. Y. 489, 44 N. E. 167 ; Lovering v. Coal Co., 54 Pa. St. 291; Huguenin v. Courtenay, 21 S. C. 403, 53 Am. Rep. 688; Mc- Millan V. Fox, 90 Wis. 173, 62 N. W. 1052; Board of Education v. Town- send, 63 Ohio St. 514, 59 N. E. 223, 52 L. R. A. 868. 102 EoRMATIOI^r OS THE CoNTBACT. for liim to pay the price. If the promise, however, was .expressly or impliedly conditional upon the transfer of title, which would generally be the case, the nouperformance of this condition, for whatever reason, would necessarily excuse him.®^ Even though his promise to pay the price was not conditional, the destruction of the goods for which the price was to he paid would be such failure of consideration as to excuse him from paying the price if he had not already paid it, and would justify him in recovering it if he had already paid it.®^ The doctrine of mutual mistake would also excuse the buyer as well as the seller. It is not ac- curate, however, to say that there is no mutual assent ;"'* the parties do, in fact, assent to the same thing. The mistake which they make is ground for excusing them from the bargain they made. It is not a ground for saying they never made a bargain.^' § 162. Deterioration or partial destruction of the goods prior to the sale. — The English act makes no provision in regard to the case of deterioration or partial destruction of the goods unknown to the parties at the time they entered into a sale. The principles which govern the case are, moreover, not so simple as those which relate to total destruction. Several cases may be supposed, the simplest of wliich is that a portion of the goods is destroyed. In such a case it is impossible for the buyer to fulfill his whole bargain; and impossibility, without his fault, should exciise him, as in case of total destruction. The buyer also should be excused from liability to pay the price for the same reasons as those given in the preceding section. It may be, however, that the buyer wishes to take the goods that remain, in spite of the destruction of the remainder; he certainly is entitled to do so. Impossibility can excuse the seller no further than the impos- sibility in fact exists. The only doubt is, upon what terms the buyer may proceed. If a separate price was originally agTeed upon for the goods which now remain, there seems no reason why the buyer should not be entitled to them upon paying this price, and so the Sales Act provides. To be sure the seller never agreed to sell those goods separately, though he agreed on a divisible '"'See infra, § 164. "This riew ig suggested by Beir '"Strickland v. Turner, 7 Ex. 208. jamin, Sale (5th Eng. ed.), 139. ■* See supra, § 5. Susject-Mattek of the Conteact. 193 prioe, but as the remaining goods wliich were the subject oi the bargain are destroyed, the seller cannot well be put in a worse •position than contemplated by the bargain if he is obliged to give up the remainder ; he is not left with goods on his hands undis- posed of. The buyer, iiowBYer, even though the contract was divisible is not bound to take the goods unless he wishes. A part -of the goods may not serve his purpose. Therefore, he has an •option to take the goods or reject them. If the price for the goods which remain is not fixed by the contract, while the buyer jnay also claim the goods, he can only claim them according to the terms of the contract. The -French Civil Code allows him to take them at a valuation,^^ but this seems to force upon the seller a bargain which he did not make. A more troublesome case arises where none of the goods 'are totally destroyed but all, or a material part of them, are inferior in condition to what the parties supposed when the bargain was made. In regard to such a case it has been said that " the only question is whether the article has been so far destroyed as no longer to answer to the description of it given by the con- tract," ^'' and this statement is warranted by the language of the leading English case.®* This language, however, was used at a •"Code Civil, Art. 1601. lay for £10 three days after the sale "Chalmers, Sale of Goods Act to the plaintiff. The plaintiff sued (5th ed.) , 20. the defendant in an action of cove- ■* Barr v. G-ibson, 3 M. & W. 390. nant for breach of the covenant In this case the defendant sold to q.uoted above. Tlie court held that the plaintiff, in England, by deed the question was whether the sub- poll, a vessel, and covenanted that ject of the transfer bore the char- 1 . had then " good right, full power, acter of a ship and held that " the and lawful authority" to sell the ship did continue to be capable of same. At the time the transaction being transferred as such at the took place the ship was aground on time of the conveyance though she the coast of the Prince of Wales might be totally lost within the island, and had been left by the meaning of n contract of insurance crew. She was five feet above water • « * The covenant, however, on one side and with her masts of the defendant that he had power standing. Her bulk ends were to transfer her as a ship at the time strained. If there had been facil- of executing the deed was not ities at hand, and it had been a dif- broken." This decision may be sup- ferent season of the year, she might ported. The action was upon a have been ,gbt off and repaired. The covenant and the decision depended -captain, in Tact, sold tlie ship as she simiply on the question whether the 13 194: FOEMATION OF THE CoNTBACT. time when the doctrines of implied warranty had not been de- veloped. More than ten years later the same eminent judge was unwilling to lay down broadly as a general rule of law that a seller impliedly warranted title to the goods sold,^® and it was not until 1868 that the English court clearly stated the modern law of implied warranty of quality.-' The ground of implying a warranty of quality must be that the buyer is justified in sup- posing that the goods to which the bargain relates are merchant- able. At the present time, therefore, it seems clear that the test of whether an article answers the description of it given by the contract is not adequate. If the parties justifiably suppose that they are dealing with goods in ordinary merchantable condition, and the goods are not in such condition, there is a mutual mis- take of a material fact, which should justify the buyer in rescind- ing the transaction. It may well be that even under the English statute nearly this result would be reached by treating goods as having " perished " within the meaning of the Sale of Goods Act, " not only if they were physically destroyed, but also if they had ceased to exist in a commercial sense ; that is, if their mer- chantable character as such has been lost." ^ It seems better, how- defendaut had broken that covenant. the time of the bargain was so ma- No question of mistake or failure terial that the buyer could have re- of consideration could enter into the scinded the transaction on account- case. The language of Parke, B., of mistake. however, goes farther than the case " Morley v. Attenborough, 3 Ex. required. He said: "In the bar- 500. The case related to a sale by gain and sale of an existing chattel, a pawnbroker and Parke, B., dis- hy which the property passes, the tinguished it from the case of an law does not (in the absence of ordinary shopkeeper selling goods, fraud) imply any warranty of the 'Jones v. Just, L. R. 3 Q. B. 197. good quality or condition of the ' This suggestion is made in Ben- chattel so sold. Parkinson v. Lee, jamin. Sale (5th Eng. ed.), 140, citing 2 East, 314; Keilw. 91; 1 EoUe's several cases where freight was held Abr., Action sur case (P.), pi. 4, not payable under a charter party p. 90. The simple bargain and sale, requiring delivery of the goods as a therefore, of the ship does not imply condition when the goods were so- any contract that it is then sea- deteriorated as to be unfit for the worthy or in serviceable condition.'' purposes for which such goods are At the present day it is clear that ordinarily used. Duthie v. Hilton, there would be a warranty of L. R. 4 C. P. 138; Asfar i;. Blundell, quality if the buyer had no oppor- [1896] 1 Q. B. 123. See also tunity of inspection, as was the case NickoU v. Ashton, [1901] 2 K. B.. here. It eeems also clear that the 126. ■fact that the ship was aground at Subject-Mattee of the Conteact. 195 ever, to reach the desired result directly than by putting an artifi- cial meaning upon such words as " perished " or " destroyed." If the seller knows of the destruction or deterioration of the goods the case would not fall within the terms of section 1, but the seller would then be liable ?f not in deceit at least on an implied warranty, and the buyer would thus be fully protected. § 163. Provision of Sales Act as to destruction of goods con- tracted to be sold. — The Sales Act provides in regard to this as follows : Sec. 8. DESTRUCTION OF GOODS CONTRACTED TO BE SOLD.— (1.) 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. (2.) Where there is a contract to sell specific goods, and subse- quently, 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 sub- stantially 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 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.^ § 164. A contract may be avoided if the goods are destroyed or injured. — The principle covered by this section of the Sales Act is not peculiar to the law of sales. It applies to the law of con- tracts generally. Where one party to a contract cannot perform what he has agreed, even though the reason he cannot perform it is ' Subsection ( 1 ) corresponds to in the order of clauses made -which section 7 of the English act, except does not affect the meaning. The that " contract " has in two places rest of the section is new and cor- been substituted for " agreement," responds with the additions to the the word "wholly" inserted before previous section. " perish," and a slight transposition 196 POEMATION OF THE CoNTEACT. impossibility, not due to his own fault, he cannot claim the per- formance of the other party.* Applying this principle jjf^the law of sales, if the property is destroyed or injured before the time ■when it was agreed that title should pass, the buyer cannot be compelled to pay the price,'' and if he has paid the price in ad- vance it may be recovered.^ From the seller's standpoint, on the other hand, impossibility of performance due to the nonexistence of the subject-matter of the contract excuses from liability." Sub- section (2) (b) is merely an application of the general doctrine oi waiver to the law of sales ; though the buyer may xefufie to take any of ihe goods if some are destroyed or injured, he may take them if he wishes to do so. He cannot, however, change his own liability in such a case from that provided for by the contract. He must pay the agreed price for what he receives, even though he is not receiving all which the contract required. § 165. Hules of the Civil Law. — The question of the destruc- tion of the subject-matter of the sale has been much discussed in the civil law, and the rules of the Eonian Law have been thus summarized : " If the thing which it has been agTeed to buy and sell has, un- known to both parties, ceased to exist at the time at which the 'Poussard v. Spiers, 1 Q. B. D. 410; 262; ToAvne r. Davis, 66 Js^. H. 396, Johnson v. Wallcer, 155 Mass. 253, 22 Atl. 450; Terry v. Wheeler, 25 29 N. E. 522, 31 Am. St. Rep. 550. N. Y. 520; Kein v. Tupper, 52 N". Y. " Calcutta Co. v. De Mattos, 32 550. L. J. Q. B. 322, 335; Tillson i'. = Logan v. Le Mesurier, 6 Moo. United States, 129 U. S. 101, 32 P. C. 116; Stone r. Waite, 88 Ala. L. ed. 636; Hays r. Pittsburg Co., 599, 7 So. 117; Joyce i'. Adams, 8 33 Fed. Rep. 552; Peace River Phos- N. Y. 291; Williams v. Allen, 10 phate Co. r. Grafflin, 58 Fed. Rep. Humph. 337, 51 Am. Dec. 709; 550; Jones v. Paarce, 25 Ark. 545; Kelly r. Bliss, 54 W'is. 187, 11 N. W. Crawford t\ Smith, 7 Dana, 59; 488; Wong Ko v. Hawaiian Govern- Brown v. Childs, 2 Duv. 314; Phil- ment, 7 Hawaii, 690. lips r. Moor, 71 :\te. 78, 80; Ling- 'Howell r. Coupland, 1 Q. B. D. ham r. Eggleston, 27 Mich. 324; 2.58; Browne r. United States, 30 Hahn r. Fredericks, 30 Mich. 223, Ct. CI. 124; Ontario Fruit Assoc, v. 18 Am. Rep. 119; Wilkinson v. Holi- Cutting Packing Co., 134 Cal. 21, 66 day, 33 Mich. 386; Slade v. Lee, 94 Pac. 28, 53 L. E. A. 681, 86 Am. St. Mich. 127, 53 N. W. 929; Drews v. Rep. 231; Losecco r. Gregory, 108 Ann River ILogging Co., 53 Minn. La. 648, 32 So. 985; McMillan v. 199, 54 N. W. 1110; Fairbanks v. Fox, 90 Wis. 173, 62 N, W. 1052. Richardson Drug Co., 42 Mo. App. Subject-Mattee of the Conteact. 197 contract is made, the contract is void. The vendor must return the purchase money, if he has been paid ; and if he alone knevsr that the property no longer existed he is- further liable to compensate the purchaser in damagea for any loss which he may sustain through nonperformance, where'as if the purchaser alone Imew it, he is bound, to pay the purchase money, and has no rights himself against the vendor. If both were aware that the property no longer existed, the contract is void. Where the thing has ceased to exist only in part, the contract is void, and the purchaser can recover any purchase money which he has paid, only where less than half of it is left, or where the portion wanting is the portion for which mainly the purchaser can show that he bought it. Other- wise the contract stands, the purchase money being proportionately abated. On the same principle a sale of the inheritance of a living third persofl, or of a person who does not and never has existed, is void, though Jugtinian legalized sales of the inheritance of a living person to which the vendor hoped to succeed, provided that person assented, though he was not thereby bound to leave it to the vendor at all." * It may be assumed that the modern civil law would follow the same principles except in so far as express Code pro- visions may modify them. In France the Civil Code provides : " If at the moment of the sale the thing sold had wholly perished, the sale shall be void. If a part only of the thing has perished it is at the option of the buyer to abandon the sale or to demand the remaining part, having the price determined by valuation." * The German Code contains no specific provision in regard to the matter, but it is covered by the general provisions in regard to impossibility, and dependency of the obligations in bilateral con- tracts.^*' The Code of Louisiana contains the following provision: " When the certain and determinate substance, which was the ob- ject of the obligation, is destroyed, is rendered unsaleable, or is lost, so that it is absolutely known not to exist, the obligation is extinguished, if the thing has been destroyed or lost, without the fault of the debtor, and before he was in default. Even when the debtor is in default, if he has not taken upon himself fortuitous ^Moyle, Contract of Sale in the 'Art. 1601. Civil Law, 21. "See §§ 306, 320, 323. 198 PoHilATION OF THE CoKTEACT. accidents, the obligation is extinguished, in case the thing might have equally been destroyed in the possession of the creditor, if it had been delivered to him. The debtor is bound to prove the fortuitous accident he alleges. In whatever manner a thing stolen may have been destroyed or lost, its loss does not discharge the person who carried it off, from the obligation of restoring its value." ^^ "Art. 2219. CHAPTER V. The Peice. Sectios166. Definition of price in the Sales Act. 167. Fixing tlie price — Executed sales. 168. Fixing the price — Contracts to sell. 169. Fixing of the price in the alternative. 170. The price may be payable in any personal property. 171. A reasonable price is payable where the price is not fixed. 172. What is a reasonable price? 173. Provision of the Sales Act for determining the price by valuation. 174. Efi'ect of a, condition requiring valuation — Transfer of property. 175. Failure of valuation without fault of either party. 176. Failure of valuation owing to the fault of either party. 177. How far the valuation is conclusive upon the parties. § 166. Definition of price in the Sales Act. — The Sales Act pro- vides as follows, in. regard to the price : Sec. 9. DEFINITION AND ASCERTAINMENT OF PRICE.— (1.) 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 course of dealing between the parties. (2.) The price may be made payable in any personal property. (3.) Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for transferring or for promising to transfer the property in goods, this act shall not apply. (4.) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circtim- stances of each particular case.^ Subsection (2) brings exchanges and contracts to exchange within the act.* ' This is based on section 8 of the be agreed " for " in manner thereby English act. Subsection (4) of the agreed," for the reason that the man- Jiales Act is identical with subsec- ner need not be fixed " thereby ; " tion (2) of the English act. Sub- i. e., by the contract. See § 167. section (1) is changed only by Subsections (2) and (3) are new. substituting " in such manner as may ' See § 170. [199] 200 FOEMATION OF THE CoNTEAGT. § 167. Fixing the price — Executed sales. — Ordinarily, the price either in an executed sale or in a, contract to sell is fixed by the parties at the time the bargain is made. It need not be stated in words, however. If the parties have by any course of dealing made it possible for a reasonable man in their position, to under- stand their intention as to the price, it will be fixed by this understanding based on previous course of dealing as eifectually as if stated in words. Likewise, either in an executory contract to sell or in a sale, the parties may provide for some means of determining the price later by outside circumstances.^ If, however, they provide that the price shall be what they between themselves may thereafter agree a difiiculty based on the fundamental principles governing the formation of contracts may arise. If the parties agree upon a sale, the price to be thus fixed, the property would indeed pass.* The assent to transfer it would be " Illustrations of such bargains may be found in the following, cases: Daniel r. Hannah, 106 Ga. 91, 31 S. E. 734) a sale of cotton at " its- highest market price in Thomaston for the cotton on Xovember 10, 1896." Beardsley v. Smith, 61 111. App. 340, an agreement to sell at the "lowest jobbing prices." Lund V. McCutchen, 83 Iowa, 755, 49 N. W. 998, a contract to sell some goods for the price which similar goods should be sold for by the manufacturers during 1889, price to be fixed on or about Feb. 1, 1889, and other goods at 8 per cent, more than, the net cost to the seller. Shaw V. Smith, 45 Kans, 334, 25 Pac. 886, 11 L. E. A. 681, a contract to sell flax seed for " thirty-five cents less than St. Louis market price on diiy of delivery." Hagins v. Combs, 102 Ky. 165, 43 S. W. 222, a con- tract to take logs in exchange for goods and allow for the logs the most that the seller " could get off^ered in money for them, delivered at Jackson, when measured." Ash- croft V. Butterworth, 136 Mass. 511, an agreement to sell air the rate the seller gives to another. Phifer c. Erwin, 100 K C. 59, 6 S. E. 672, an agreement to sell at the market price on a specified day. Cunningham v. Brown, 44 Wis. 72, a contract to sell a lot of land for the same price at which other lots in the vicinity should first be sold. llcConnell v. Hughes, 29 Wis. 537, an agreement to sell at ten cents less than the market price on a day to be named by the vendor. in the future. McBride v. Sih'er- thorne, 11 U. C. Q. B. 545, an agreement to sell at the market price on the day when the seller should make demand. * Valpy r. Gibson, 4 C. B. 837, 864; Shealy c. Edwards, 73 Ala. ITS, 49 Am. Rep. 43; Greene v. Lewis, 85 Ala. 221, 4 So. 740, T Am. St. Kep. 42; Leist r. Dierssen, Cal. App. , 88 Pac. S12; McEwen r. ilorey, 60 111. 32: Stout r. Carruthersville Hardware Co. (Mo. App.), 110 S. W. 619. In Valpy v. Gibson, the court said : " The omission of the particu- lar mode or time of payment, or even of the price itself, does not neces- The Pkice, 201 effectual irrespective of the validity of the consideration furnished by the buyer's promise to pay. An executed transfer of property, while voidable for mistake or fraud, is not invalid for lack of consideration. In the case supposed the seller has received exactly the promise on the part of the buyer which he expected to receive, and it is immaterial whether this promise is illusory in that, by its very terms, the obligation to perform is dependent on the sarily invalidate a contract of sale. Goods may be sold, and frequently are sold, when it is the intention of the parties to bind themselves by a contract which does not specify the price or mode of payment, leaving them to be settled by some future agreement, or to be determined by what is reasonable under the circum- stances. And we think the evidence in this case shows that the parties intended to bind themselves by a con- tract of sale at the specified prices, leaving the mems to have been eopii'd from the Roman Law without (vbservation of essential differenees be- tween that law and the eonunoii law. Tlu' Uomau Law allowed eer- tain contracts to be nuide with a freeibun from formality not ]M:r- mitted in other kinds o( eonlraets. Amoni;'the fawired e(mtr!U'ts was the coiitra.et of sale. Since i>eenliar rules were applicable to such a contract it was necessary to determine sharply its Ixiundary lines, and a contract of exchange was held to be not included in tbo designation of a cdutract of sale. In o>ir law, howe\-er, there is no different rule apjilicable to a contract of sale from that which is applicable to a contract of exchange. It would seem unfortu- nate in codifying tlie law of sales In exclude contracts of exeliange which turn on precisely tiie same ])rinciples ami which ditf(>r, if at all, only in name. The only deubtful point indeed, in regard "UnifjdcM r. MairioU, :\ Uinjj;. N. ('. r. Hanmiond, 102 i\licli. \-l-l. ISO N.W. 473; Rourlce r. Slunt. f. Iv i' 1!. 904. .1.".:., 'i."> 1.. T!. A. Tin. In (lio forini'i- chsc tlio (lofoniliiiit scild "Thus in Taxlor r. Sn\rlton, 11 the plninlilT a liovsc mi tlic iorms (J. U. I) 207, a siilc ut ii li\(Hl jirici' tlint. the ]iii(i' slicniUl lie t200, if iif ]iiu'ki>ts i-ontaininL; a pound of Irii williiii cmi' month iiflrr tho dale of and a I'diipon I'lil illiiii; llio |mri'lia^cr tbo agri'cMionI it trullod cifjlilccri to a lo-i/.c, tlii' nnionnt of wliich wa-i niilps in an Iio\ir. Init one sliillintr if not dctorminod nntil after llu- sale, if. failed to do so. This was held to was a lottery within tlie moaning of ho a wagor. It will ho noticed that an l'j\ij;liah slatnto. On the other in this eas(' tlu' det<'rniiiilnij; event liand in t'arlill r. Carholie Stnoke alTocted tlie value of tlie horse, blit 'Hall Vo.. flS!)21 2 (). "R. IS I, \]>^m] llio dis|iropiu-l ion hetween C200 and 1 Q. B. 2.'i0, a sale of a smokebnll one shilling is so to elTort a riire, was held lo eveato a in ease it could not trot eighteen \alid contract to pay this sum on the mile.i in an hour. Compare Newell r. happening of the condition. Smith, 5.1 Conn, 72, :i All. 07 -t ; Deyo > The Pkice. 20T to exchanges, is whether they differ even in that respect. An exchange has been held in this country, universally, to be vsrithin the section of the Statute of Frauds relating to the sale of goods." So in the construction of other statutes the word " sale " has been held to include transactions for other than a money price. ^^ It is true that the count for goods sold and delivered could not be maintained by proof of an exchange,'"' and probably the same doc- trine applies to a count for goods bargained and sold. The reason for this, however, is probably not so much because the counts make use of the word " sold," as because the common counts were based on the fiction of an implied promise arising from a money debt. There seems no warrant for supposing that indebitatus assumpsit would lie in any case for failure to deliver goods, although the action of debt for breach of a promise to deliver specific goods was known to the common law.-'^ The price, though it need not, there- fore, be payable in money, must be payable in personal property. Our law has special doctrines distinguishing contracts in regard to land from contracts in regard to personalty ; so that if the bar- gain on either side relates to land, the transaction is not within the terms of the Sales Act, or within th.e scope of this book. § 171. A reasonable price is payable where the price is not fixed. — Whether the parties make an executed sale or an executory " Supra, § 56. popular sense, the sale of an article •^ Gallus V. Elmer, 193 JIass. 106. signifies the transfer of property from In this case a transfer by a dealer of one person to another for a considera- his whole stock of merchandise out- tion of value,, without reference to side his usual course of business in the particular mode in which the con- satisfaction of a pre-existing debt, waa sideration is paid." Bigelow, C. J., held a sale in bulk within the mean- in Howard v. Harris, 8 Allen, 297, ing of the ^Massachusetts Statute 299. And accordingly it was held in 1903, c. 414, making such a sale void that case that where the considera- as against creditors of the seller un- tion for the transfer of the owner- less the requirements of the statute ship of a horse consiisted of intoxicat- are complied with. The court said: ing liquors which the buyer of the " While it is true that in its strictest horse was not legally authorized to sense a, sale is a transfer of personal sell, the transaction was a sale within property in consideration of money the meaning of a, statute prohibiting paid or to be paid, still in the inter- the sale of intoxicating liquors, pretation of statutes it is often held "Harrison v. Luke, 14 M. & W. to include barter, and any transfer 139. of personal property for a valuable " Chitty, Pleading, ♦lOg. consideration." "In a general and 208 I'OEMATION OF THE CoNTEAOT. contract to sell, the buyer must pay a reasonable price, if no price is agreed upon. This obligation of the buyer is sometimes con- tractual and sometimes gwo^i-contractual. If a buyer orders a barrel of flour from his grocer, it is the actual intent and under- standing of the parties that the buyer will pay a reasonable price. So in the case of a contract to sell; if a buyer order a carriage made to order and the carriage builder agrees to build it, nothing being said as to the price, the parties intend and understand that a reasonable price shall be paid. The law enforces their intention in this respect as in other respects.-"^ The obligation of the buyer to pay a reasonable price may, however, be based on an obliga- tion imposed by the law as distinguished from a contractual obliga- tion. If goods are transferred with the expectation on both sides that they are to be paid for, the supposition of a gift being, therefore, excluded, the buyer will not be allowed to keep them and refuse to pay for them. This situation will generally arise where the means which the parties contemplated for fixing the price have, for any reason, proved ineffectual. One instance of this sort is provided for expressly in section 10 of the Sales Act.i^ § 172. What is a reasonable price? — The reasonable price or value of goods is generally the market price at the time and place "Acebal v. Levy, 10 Bing. 376 Hoadly v. M'Laine, 10 Bing. 482 Valpy V. Gibson, 4 C. B. 837, 864 however, vpas not avoided. The ease of a sale of necessaries to an infant furnishes still another illustration. Shealy v. Edwards, 73 Ala. 175, 49 The infant is bound to pay a reason- Am. Eep. 43 ; Greene v. Lewis, 85 able price, not that which he agreed Ala. .221, 4 So. 740, 7 Am. St. Kep. to pay. See supra, § 21. Similarly 42 ; McEwen v. Morey, 60 111. 32 ; in the case of a lunatic. See supra, Jenkins v. Richardson, 6 J. J. Harsh. § 34. Again, if goods are furnished 441, 22 Am. Dec. 82; Taft v. Travis, to a married woman, on the credit of 136 jMasa. 95; Ijovejoy v. Michels, 88 her husband under ciroumstanoes Mich. 15, 40 X. W. 901, 13 L. R. A. which bind the husband to pay, the 770; Stout V. Carruthersville Hard- same consequences follow. See supra, ware Co., Mo. App. ,110 § 48. So where a contract calls for S. W. 619; Livingston v. Wagner, 23 dry wood and green wood was fur- Nev. 53, 42 Pac. 290. nished and accepted by the buyer, " Another illustration may be but not as performance of the con- found in Bradley i . Rea, 14 Allen, tract, it was held the seller could Jiot 20, 103 Mass. 188, 4 Am. Rep. 524. recover the contract price, but only In this case the agreement for a fixed a reasonable price. Duvall r. JFer- price was made on Sunday and wag werda, 146 .Midi. 13, 108 N. W. .1115. consequently invalid. The sale itself, The Pkice. 209 iixed by ihe contract or hj law for the delirery of the goods.^ Under special circumstances o£ unnatural conditions in the market, -the market price does not -furnish the ohly test. In 'the leading case aipcn this point,^^ the court said: A reasonahle price "may or may not agree with the current price of the com- modity at i:he port of shipment at the precise time when suci shipment is made. The current price of the day may be highly unreasonable from accidental circumstances, as on account of the commodity having been purposely kept back by the vendor himself, or with reference to the ]Drice at other ports in the immediate vicinity, or from various other causes." This doctrine has been applied in cases where the market has been monopolized.^^ § 173. Fixing price by valuation — Provisions of Sales Act. — Sec. 10. .SAI.E AT A VAIiUATION (1.) 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 iihe buyer, cannot cr does not fix the pri^e or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof Jmve been delivered to and appropriated by the buyer he must pay a reasonable price "therefor. (2.) 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 " Henckley v. Hendrickson, 5 Mc- shingles. The court held that had Lean, 170; Taft v. Travis, 136 Mass. the buyer returned the shingles or 95 ; Deutsch p. Pratt, 149 Mass. 415, set them apart and given notice that •21 y. E. 1072; Deck r. Feld, 38 Mo. he would not keep them and never App. 674; Althouse v. Alvord, 28 afterward intermeddled with them. Wis. 577. In Greene v. Bateman, 2 he would not have been liable, but ^Voodb. & M. 359, shingles were sold as he resold them, he was liable for and delivered " at $3.25," but there " the price received for them, deduct- was a misunderstanding as to whether ing the usual charges and commis- this price was for a bunch of aion." shingles or for 1,000 shingles. After " Acebal v. Levy, 10 Bing. 376. the dispute arose the buyer offered to " Lovejoy v. Michels, 88 :Mich. 15, Teturn the shingles or pay "for them 49 N. W. 901, 13 L. H. A. 770; by the -thousamd, but the seller re- Kountz v. Kirkpatrick, 72 Pa. St. iused to accept them and insisted 376, 13 Am. Rep. 687. See also upon being paid $3.25 a bunch. The Smith v. Griffith, 3 Hill, 333, 38 Am. buyer, thereupon, kept and sold the Dec. "639. 14 210 jFormatioit of the Conteact. may have such remedies against the party in fault as are allowed by Parts IV and V of this act.^^ § 174. Effect of a condition requiring valuation — Transfer of property. — The question provided for in this section of the stat- ute depends on principles not peculiar to the law of sales, but involved in many forms of contract. The requirement of valua- tion is in such a ease an exj^ress condition, or a condition implied in fact, qualifying the obligation of the buyer to pay the price. In- stead of promising to pay a specified price or a reasonable price, he promises to pay such price only as the valuers shall fix. In the nature of the case this promise cannot be performed unless the valuation first takes place. Such a condition has sometimes been called a necessary condition, or an inherent condition.^* The valuation may also be a condition precedent to the transfer of the property in the goods. This, however, is not necessarily the case, as previously shown."® A seller may transfer the property though the price has not yet been fixed by the valuers. The question is one of intention.^® If an immediate transfer of the property was " The wording of tins section is slightly varied from section 9 of the English statute. That section of the English ■ act makes no reference to terras other than the price. The sec- tion in the American draft by in- cluding the word " terms " applies the same rule which is applicable in case of a price to be fixed liy valuation to other terms of the contract to be fixed by a third person. Subsection ( 1 ) of the English statute also does not contain the words " without fault of the seller or the buyer." Subsec- tion ( 2 ) would doubtless be held in England, however, to have the effect of limiting subsection (1) to the case where neither party was in fault. Subsection (2) of the English act gives the injured party, where the prevention has been caused by either seller or buyer, an action for dam- ages against the party in fault. There seems no reason, however, why the injured party should not have any appropriate remedy given to the buyer or seller where the contract has been broken by the other party. Thus: If title to the goods has passed the injured party should have the right of rescission. " James, L. J., in Ex parte Collins, L. R. 10 Ch. 367, 372. '^Bitpra, § 167. ^° There are, indeed, a few expres- sions in the cases which are at vari- ance with the statement in the text that the property may pass. See Elberton Hardw-are Co. v. Hawes, 122 Ga. 858, 50 S. E. 964, and cases cited. These are based upon a misunder- standing of the "Roman Law. In that law it was held that until the price was fixed by valuation the sale was null. This doctrine, however, is based on two rules of the Roman Law. In the first place, as previously stated, supra, § 170, for reasons peculiar to Roman jurisprudence, there could be no sale without a fixed price. In The Peice. 211 agreed upon, the buyer being credited for the price, the property- will, therefore, pass. If, however, the seller's promise was execu- tory, it will generally be subject to a condition that the price be paid simultaneously with the transfer of the property. If such a condition exists, whether expressed or implied, it is obvious that no liability on the part of the seller can arise until the price is not only fixed by the valuation, but is also tendered. One may sup- pose a case, however, where the promise of the seller though execu- tory is not subject to such a condition. For instance, if the seller agreed to deliver on a fixed date, the buyer to have thirty days' credit for the price, which should be determined by valuation. Even in such a case if it became evident before the time for the delivery of the goods that the valuation was not going to take place for any reason, the seller would be. excused from performing his promise.^^ Frequently it will not be apparent from the terms of the bargain at what moment the parties intended the property to pass, and for this reason resort must be had to rules of presump- tion. In England it is a rule of presumption that where the seller is bound to do some act in reference to the goods for the purpose of ascertaining the price, the property does not pass until such thing be done.^® This rule prevails in substance in many of the United States,^' and where it prevails it seems that the con- clusion is justified that " strong proof would no doubt be required to show that an immediate sale was intended, for the transaction should be considered prima facie as an agreement to sell by analogy to that rule." ^° This rule of presumption, however, has been abolished in some of the United States,^^ and has not been included in the American Sales Act. Accordingly in juris- dictions where the rule is not enforced, either because of the second place, no sale under the of the property at all, hut to the Roman Law transferred title to the question of whether a valid contract property. Not only delivery but to sell exists. actual payment of the price was es- ^' See infra, §§ 576-578. sential. Consequently, a sale in the ^English Sale of Goods Act, § 18, Eoman Law meant an executory con- rule 3. See infra, § 266. tract, not a transfer of the property; =" See infra, § 269. and when the Roman lawyers say "Benjamin, Sale (5th Eng. ed.), that the sale is null where no valua- 145. tion has been made, they are not re- " See infra, § 269. ferring to the question of transfer 212 rOEMATIOIf OF THE CoNTEACT. tke passage of the Sales Act or otherwise, the broad general pre- eiamptioa would be applicable that where there is an unconditional contract to sell specific goods in a deliverable state, the property iai the goods presumably passes to the buyer when the contract is madt'."" It may be argued that this is not an unconditional con- tract until the valuation is made, but the condition of valuation seems properly attached to the obligation to pay the price rather than to the contract to sell the goods. The qualification of the seller's promise is simply that dependency which habitually exi-sts in a contract to sell, namely, that failure of the buyer, actual or prospective, to fulfill his obligation will excuse the seller from his obligation.'^ § 175. Failure of valuation without fault; of either party. — If the valuation fails without fault of either party, it must naturally follow that an obligation conditional upon such valuation cannot Le enforced. That is, the promise of the buyer to pay the price i-s necessarily discharged. A question may indeed be raised as to the mieaniag of the condition, and this has been suggested hx the civil law, namely, whether the contract in naming a par- ticular valuer fairly means more than to designate a " reasonable man " and, therefore, whether it is not within the terms of the conti'act to substitute another reasonable man for the one specially designated. Both the Eoman Law^* and our law have answered this question in the negative, and with reason. It must be as- sumed that the parties laid weight on the particular individuality of the valuer. Accordingly if the valuer either dies,^^ or refuses to act,^'' the buyer cannot be compelled to pay the price because of the condition in his obligation, and the seller, similarly, if he has not already transferred the property, cannot be compelled to do so either because his promise to transfer is itself expressly con- ^ Sales Act, § 10, rule 1. See in- »" Thurnell v. Balbirnie, 2 II. & W. fra, § 2f!4. 786; Elberton Hardware Co. V- "Soe infra, §■§ .576-.578. Hawea, 122 Ga. 858, 865, 50 S. E. '^ Juitinian's Institutes, 3, 24, 1 ; 964. See also Cooper r. Shuttle- Code, 4, 38, 15. See Moyle, Contract worth, 25 L. J. Ex. 114; Vickers p. of Sale, 70. So Pothier, CoTitraot of Vickers, L. R. 4 Eq. 529; Milnes Sale, S 24, and the French Civil r. Gery, 14 Ves. Jr. 400; Wilks v. Code, Art. 1592. Davis, 3 Mer. 507 ; Hutton i'. Moore, == Firth V. Midland R. R. Co., L. R. 26 Ark. 382 ; Fuller v. Bean, 34 N. H. 20 Eq. 100. 290. The Pkicb. 213 ditional, or because tie present or prospective failure on the part of the buyer to pay the price excuses the counter-obligation to transfer the propei-ty in the goods. If already transferred to the buyer before it appears that the valuation cannot be made, either party to the bargain should have the right to rescind it if the other party can be put in the same position vphich he was in before the bargain was made.^^ It may, however, happen that the buyer has made use of the goods or otherwise has become xm- able to restore them. In such a case the seller is entitled on prin- ciples- of gims^-contract to recover the fair value of the goods.®^ § 176. Failure of valiiatioii owing to the fault of either party. — In any case where from its nature a contract requires some action by one party or the other, or the co-operation of both, there is an implied promise to perform the act or to give the co-operation even though the pTomise is not expressed. Accordingly if either party was to select a valuer or notify a man selected for a valuer, or sub- mit property to valuation and fails to do so, he has broken his contract. He is, therefore, liable in damages. Specific perform- ance will not, however, be given of such a contract.*® This is in accordance with the general principle of equity denying specific performance of all kinds of agreements for arbitration.*** The case may be further supposed, however, that possession without "Benjaimin, Sale (5th Eng. ed. ), although no test had been made hy- 145. M. or any one else since the sale. In " Clarke v. Westrope, 18 C. B. 765 ; this case it is to be observed that Elberton Hardware Co. v. Hawes, 122 the defendant kept the horse beyond Ga. 838, 865, 50 S. E. 964. See also the period of ninety days, and also Deyo r. Hammond, 102 Mich. 122, 60 that the agi-eement itself showed the X. W. 455, 25 L. R. A. 719. In that parties considered an additiona.1 $100 case plaintiff sold the defendant a a reasonable amount if the horse horse for $800 cash, and an agreement had the speed which the eveidence by the defendant to pay an addi- showed it to possess. The decisions tional $100 if the horse could trot as in this note make rt evident that fast as one owned by the defendant there is no difficulty in title being- -svithin ninety days; the test to be transferred though the valuation does made by one M. The trial did not not and cannot take plaiee. take place owing to the sickness of ^'Tickers v. Viefcersj L. R. 4 Eq. the horses. It was held, ne-verthe- 529. less, that the defendant was liable to *"The cases are collected in Ames, pay the additional $100, it appearing Cases Equity Jurisdiction, p. 68, from the e-vidence that the horse sold note, could trot faster than the other one, 214 FoEMATiosr of the Conteact. title or that title without possession has passed to the buyer, and that subsequently he wrongfully fails to perform, or prevents per- formance, so that the valuation cannot take place. In such a case the seller could not only maintain an action for damages, but would be entitled to any other appropriate remedies allowed to an unpaid seller.*^ If neither the property nor possession had passed to the buyer, the seller could only maintain an action for damages, with a possible exception that if the goods could not readily be resold for a reasonable price, the seller might be allowed to treat the goods as the buyer's and sue for a reasonable price.*^ In in- surance policies an appraisement or valuation of the injury is frequently made a condition precedent to any right of action. This condition may, however, be excused by the misconduct of the company or its appraiser.*^ It will be noticed that the situation in siich a case is analogous to that in a sale where title to the goods has passed and they have been used by the buyer. The insurance contract has become binding by the performance of the consideration on the part of the insured; that is, by the pay- ment of the premium, and the loss having taken place, it is im- possible to remit the parties to their original position. The plaintiff is, therefore, entitled to recover the amount of his loss as estimated by a jury. § 177. How far the valuation is conclusive upon the parties. — In the absence of fraud or mistake, the price fixed by agreed valuers is conclusive upon the parties.^* The analogy is strong between this question and that presented where the certificate of " As to the nature of tliese reme- fact that the appraisement was not dies, see infra, §§ 501-593. concluded before suit brought will not ■ "See Sales Act, § G3 (3), and bar an action on the policy." Mc- infra, §§ 560, 5(12-574. Cullough v. Insurance Co., 113 Mo. "In Brock v. The Dwelling-House 606, 21 S. W. 207; Bishop v. Insur- Ins. Co., 102 Mich. 583, 61 N. W. ance Co., 130 N. Y. 488, 29 X. E. 67, 26 L. R. A. 623, it was held this 844 ; Ulirig v. Insurance Co., 101 condition was e-Kcused by the unrea- N. Y. 362, 4 N. E. 745 ; Bradshaw v. sonable action of the appraiser ap- Insurance Co., 137 N. Y. 137, 32 pointed by the company. The court N. E. 1055. Compare Cooper v. say (p. 593): "It is well settled Slmttleworth, 25 L. J. E.x. 114. that where the conduct of the com- "Norton r. Gale, 95 111. 533, 35 pany's appraiser in refusing to agree Am. Eep. 173; Kew England Trust on an umpire is inexcusable, and Co. r. Abbott, 162 Mass. 148, 38 N. E. virtually amounts to a refusal to 432, 27 L. R. A. 271; Wilcox v. proceed with the appraisement, the Young, 66 Mich. 687, 33 N. W. 765. The Price. 215 an architect or engineer is made a condition precedent for any liability for the price. In such a case the general rule is that the certificate or refusal of it is conclusive in the absence of fraud or sxich mistake, as either implies bad faith or a failure to exer- cise an honest judgment upon the real question involved.*^ In ISTew York and a few other States, however, the court apparently exercises a more liberal right to revise the conclusion of the archi- tect or engiiieer. If his action was unreasonable the condition seems disregarded.*® In England the court goes to the other extreme. The fraudulent collusion of the architect or engineer, or similar official, with one of the parties, will invalidate the decision so far as the other party is concerned*'^ there, as well as in this country.** It has been further held, however, in England In the civil law " if the valuer named fixed an outrageously unfair price, it is very generally held that it could be rectified by recourse to an action." Moyle, Sale in the Civil Law, 70. So Pothier, Contract of Sale, § 24. But Bechman, Der Kauf, II, § 217, holds otherwise. '" Chicago, etc., R. R. Co. v. Price, 138 U. S. 185, 11 S. Ct. 290, 34 L. ed. 917 ; Kennedy v. United States, 24 Ct. CI. 122; Cook v. Foley, 154 Ked. Rep. 41, 81 C. C. A. 237; Car- lile V. Corrigan, S3 Ark. 136, 103 S. W. 620; Dingley i: Greene, 54 Cal. 333; Fowler v. Deakman, 84 111. 130; G-ilmore v. Courtney, 158 111. 432, 41 N. E. 1023; Merrill v. Gore, 29 Me. 346; Baltimore & Ohio R. R. Co. r. Brydon, 65 Md. 198, 611, 3 Atl. 306, 9 Atl. 126, 57 Am. Rep. 318; Palmer v. Clark, 106 Mass. 373; Beharrell v. Quimby, 162 Mass. 571, 39 N. E. 407; White v. Abbott, 188 Mass. 99, 74 N. E. 305; Shaw v. First Baptist Church, 44 Minn. 22, 46 X. W. 146; Standard Construction Co. 1}. Brantley Granite Co., 90 Miss. 16, 43 So. 300; McGregor v. J. A. Ware Const. Co., 188 Mo. 611, 87 S. W. 981 ; Sheyer v. Pinkerton Const. Co. (N. J.), 59 Atl. 462; Chism V. Schipper, 51 N. J. L. 1, 16 Atl. 316, 2 L. R. A. 544, 14 Am. St. Rep. 66S. " Anderson v. Imhoff, 34 Neb. 335, 51 N. W. 854; Van Keuren V. Miller, 71 Hun, 68; Nolan v. Whitney, 88 N. Y. 648; Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634; Thomas V. Stewart, 132 N. Y. 580, 580, 30 N. E. 577 ; Macknight Flintic Stone Co. V. City of New York, 160 N. Y. 72, 86, 54 N. E. 661; Whelen v. Boyd, 114 Pa. St. 228, 6 Atl. 384; Sullivan v. Byrne, 10 S. C. 122; Norfolk, etc., Ry. Co. i: Mills, 91 Va. 613, 22 S. E. 556; Washington Bridge Co. v. Land c& River Improve- ment Co., 12 Wash. 272, 40 Pac. 982; Bentley v. Davidson, 74 Wis. 420, 43 N. W. 139; Wendt v. Vogel, 87 Wis. 462, 58 N. W. 764. "Batterbury v. Vyse, 2 H. & C. 42. *' St. Louis, etc., R. R. Co. v. Kerr, 153 111. 182, 38 N. E. 638; Crawford V. Wolf, 29 Iowa, 567; Smith v. White, 5 Neb. 405; Whelen v. Boyd, 114 Pa. St. 228, 6 Atl. 384; Mills v. Paul (Tex. Civ. App.), 30 S. W. 558. See also Linch v. Paris Lumber Co., 80 Tex. 23, 15 S. W. 208; Markey r. Milwaukee, 76 Wis. 349, 45 N. W. 28. 216 FOEMATION OF TUB CoNTEACT. that a provision in the contract that an architect's decision should be final and should not be set aside or attempted to be set aside. " for any pretense, suggestion, charge, or insinuation of' fraud, collusion, or' confederacy " debarred a party from attacking the architect's- decision on the ground of fraud.*' It may be doubted whether this decision would be- followed in this country, where it is generally held that fraud or refusal to exercise an honest judgment, though without collusion with the defendant, excuses the plaintiff from performance of a condition requiring a certificate. ''o "Tullis V. Jacson, [1892] 3 Ch. 5U; Eldridge r. Fuhr, 59 Mo. App. 441. Compare Redmond v. Wynne, 44'; Chism v. Schipper, 51 N. J. L. 13 N. S. Wales (Lair), 39. 1, 16 Atl. 316, 2 L. R. A. 544, 14 »° North American Ry. Const. Co. v. Am. St. Rep. 668 ; Bradner v. Roff- E. E. McMath Surveying Co., 116 sell, 57 N. J. L. 32, 29 Atl. 317. See Fed. Rep. 169, 54 C. C. A. 2r; also Arnold v. Boumique, 144 111. Micbaelis v. Wolf, 136 III. 08, 26 132, 33 N. E. 530, 20 L. E. A. 493, N. E. 384; McDonald v. Patterson, 36 Am. St. Rep. 419; Bean v. Miller, 186 III. 381, 57 N. E. 1027; Foster 69 Mo. 384; Justice v. Elwert, 28 V. McKeowB, 192 III. 339, 61 N. E. Or. 460, 43 Pac. 649. CHAPTER VI. Conditions and Warranties. Section 178. Conditions and their effect — Provisions of Sales Act. 179. Meaning of conditions. 180. Illustrations. 181. Definition of warranty. 182. Requirements of warranty under tlie English law. 183. A warranty need not be collateral in form. 184. May there be a collateral warranty in an executory contract to sell. 185. Specification of the goods as an essential of collateral warranty. 186. Express conditions. 187. Implied conditions. 188. Sales to arrive. 189. Time. 190. Notice. 191. Satisfaction of the buyer. 192. Waiver of conditions. 193. Prevention. 194. Express warranty. 195. Early law of warranty. 196. Later developments. 197. Nature of the obligation of warranty. 198. Intent to warrant. 199. American law — Pennsylvania. 200. Other American authorities requiring intent on the part of the seller. 201. Best modern authorities disregard the seller's intent; 202. Distinctions between affirmation of fact and opinion. 203. Contrasting decisions of statements of fact and opinion. 204. Liability for erroneous statement of opinion. 20'5. Description of the goods. 206. Reliance of the buyer. 207. Obvious or known defects. 208. Inspection. 209. Statements previous to the bargain — English decisions. 210. Statements previous to the bargain — American decisions. 211. Statements subsequent to the bargain. 212. Warranty- as to future events. 213. Limitations on express warranties. 214. Construction. 215. Pai-ol evidence. 216. Warranties of title — Statutory provision. 217. No implied warranty of title in early law. 218. Warranty of title in; America. [217] 218 Formation of the Conteact. Section 219. Limitations on implied -warranty of title. 220. Sales by one not professing to be owner. 221. When the cause of action arises. 222. Rule of the civil law. 223. Warranties implied in sales by description — Provisions of the Sales Act. 224. What is meant by sale by description. 225. 'Warranty in sales by description. 226. Sales by sample and description. 227. Implied warranties of quality — Provisions of the Sales Act. 228. No implied warranty of quality in the early law. 229. Classification in Jones v. Just. 230. Executoi-y and executed agreements. 231. Specified goods and unspecified goods. 232. The seller a manufacturer. 233. The seller a dealer. 234. Inspection. 235. Fitness for a particular purpose. 236. Known, described, and definite articles. 237. The seller's obligation Is not based on negligence. 238. Subsidiary warranties by manufacturer. 239. Exclusion of implied warranty. 240. Meaning of manufacturer. 241. Provisions, early law. 242. Provisions, modern law. •■ 243. What is meant by merchantable. 244. Warranty not available to subpurchaser. 245. Deterioration after shipment. 246. Usage. 247. Civil law. 248. Effect of the provisions of the Sales Act. 249. Warranties in sales by sample — - Provisions of the Sales Act. 250. There may be a contract to sell or a sale by sample. 251. The sample as a term of the contract. 252. The sample as a representation as to the bulk. 253. The sample not always a representation as to the bulk. 254. Parol evidence. 255. Burden of proof. 256. Buyer's right of inspection. 257. Merchantability. § 178. Conditions and their effect — Provisions of Sales Act. — The Sales Act provides in regard to conditions in contracts to sell or sales, as follows : Sec. 11. EFFECT OF CONDITIONS.— (1.) Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to Conditions and Wareanties. 219 proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first-mentioned party may also treat the non-performance of the condition as a breach of warranty. (2.) Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to furnish goods as described and as warranted expressly or by implication in the contract to sell as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods. The Sales Act adopts a different terminology from that used in the Sale of Goods Act, and a few words must be given in ex- planation of the terminology used here and elsewhere in regard to the same subject, for much of the confusion in this difficult subject is traceable to terminology, which is either incorrect or ambiguous. § 179. Meaning of " condition."— The term " condition " is said, probably with truth, to have been imported into the law of eon- tracts from the law of conveyancing.^ But in England inaccurate use of the term has become common and American courts have too often been content to follow the expressions of the English courts in regard to the matter.^ Conditions in contracts have been divided according to the period of time at which they come into operation, into precedent conditions, concurrent conditions, and subsequent conditions. It is only the first of these which is material here in connection with the subject of warranty, and when the word " condition " is used alone, it is generally a condi- tion precedent which is meant. Condition precedent is, however, a relative term. It invites the inquiry, precedent to what? It may be either precedent to liability on an obligation of one party or the other, or it may be precedent to the existence of a con- ' Chalmers, Sale of Goods Act ( 5tli warrant ; though the distinction is ed. ), 174. frequently not observed, it has not 'In Chalmers, Sale of Goods Act been entirely lost sight of; it would (5th ed), 174, the author says: "In be most unfortunate if it should be. conveyancing a distinction was drawn The respective meanings of condition between ' conditions ' and ' covenants ' on the one hand and promise, or cove- which in contracts has now become nant, on the other, are very distinct, obliterated." This statement cer- and a distinct word should be re- tainly goes beyond what the facts served for each meaning. 220 I'OEMATION OF THE CoNTEACT. tract or precedent to the transfer of the property. Conditions are also divided into express conditions and implied conditions, according to the method of construction needed to establish them.^ § 180. Illustrations. — The meaning of condition is well under- stood and the word is used in one and the same sense by courts and lawyers in all jurisdictions in most classes of cases. It ia only in the law of sales that a difference of usage prevails. Where goods are described in a contract of sale the seller's prom- ise to furnish the goods is often called a condition. The authority most often cited for this modem use of the word " condition " is a jjasbage from an opinion from Lord Abinger: " Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract; and, tihough part of the contract, yet collateral to the express object of it. But in many of the cases, some- of which have been referred to, the circumstance of a party selling a particular thing by its proper description has been called a war- ranty, and a breach of such contract a breach of warranty; but it would be better to distinguish such cases as a noncompliance with a contract which a party has eng;aged to fulfill; as, if a man offers to biiy peas of another, and he sends him beans, he does not i>erform his contract ; but that is not a warranty ; there is no warranty that he should sell him peas; the contract is to sell peas, and if he sell him anj'thing else in their stead it is a nonperformance of it. So, if a man were to order copper for sheathing ships • — that is, a jDarticular copper, prepared in a particular manner — if the seller send him a different sort, in that case he does not comply with the contract ; and thoiigh thi» may have been considered a warranty, and may have been ranged under the class of cases relating to warranties, yet it is not prop- erly so." * It will he noticed that Lord Abinger does not make use of the word " condition," he is concerned in defining warranty, and endeavoring to bring out the point that a warranty is collateral to the express object of the contract in modern parlance. The ob- ligation of the seller in such a case as that which is put by Lord ' Express conditions are considerBd, ' Chanter r. Hopkins, 4 M. & W, 'infra, § 186, and implied conditions, 399. infra, § 187. Conditions .and Wabeanties. 2'21 Ahinger is now, however, fsequently called a condition, and this terminology is made use of in the Sale of Goods Act. It is obvious in the case supposed of a contract to buy and sell peas, if the buyer authorizes the seller to appropriate peas to the bar- gain, and thereby transfer the property in them, it is a condition precedent to the transfer of title that the goods which the seller attempts to appropriate to the bargain shall be peas, in the same sense that it is a condition precedent to the formation of a simple contract that the parties assent to the same thing; or in the same sense that it is a condition precedent to the liability of a principal that an agent act within the scope of his authority. It is not, however, properly a condition of the buyer's obligation to accept peas or to pay the price; beans are simply not within the terms of the buyer's contract, as Lord Abinger says. Still less is the obligation of the seller either a condition or subject to a con- dition. He has promised to sell peas and the failure to perform that promise, whether accompanied with an offer to furnish beans or any other vegetable, is a breach of his promise. It is unneces- sary to argue at this point whether this promise of the seller is properly called a warranty. The essential thing to bring out is that it is a promise. The buyer's promise is indeed impliedly conditional on the performance by the seller of his promise, and this is so provided in subsection (2) of the section of the Sales Act under consideration,® but this is the general rule in the law of sales, and to call the seller's obligation in this kind of case a condition merely because of the mutual dependency of the buyer's and seller's promises is wholly to confuse legal termi- nology. In the Sales Act, therefore, and in this book, the word condition is never used in the sense of promise.'^ "In his annotation of the Sale of "The use of condition which is here <}oods Act, Judge Chalmers describes deprecated, it must be .admitted, has ■with perfect accuracy the nature of the sanction of eminent judges, the seller's obligation when he says Varley w. Whipp, [1900] 1 Q. B. 513; (5th ed., p. 28) : "As used in the Pope v. Allis, 115 U. S. 363, 6 S. Ct. act, ' condition ' is the equivalent of 69, 29 L. ed. 393 ; Fogg v. Rodgers, the old term 'dependent covenant.'" 84 Ky. 558, 2 S. W. 248; Columbian The old terminology is accurate and Iron Works v. Douglas, 84 Md. 44, should be Ecta,ined. The new ter- 34 Atl. 1118, 33 L. R. A. 103, 57 mi-nology suggested is inaccurate and Am. St. Rep. 362 ; Wolcott v. JMount, misleading. 36 N. J. L. 262, 13 Am. Rep. 438, 38 222 FoEMATioN or the Conteact. § 181, Definition of warranty. — There is no more troublesome word in the law than the word " warranty." It is constantly used in different senses. It is a common term in the law of insurance, the law of charter parties, and the law of sales. In an insurance policy, the insured can hardly be regarded as making any prom- ises, yet certain provisions in insurance policies are commonly denominated warranties. The effect of calling a provision in an insurance policy a warranty is not that the insured can be sued for breaking a promise, but that the insurer is excused from the performance of his promise ; that is, the so-called warranty is in fact a condition qualifying the liability of the insured.^ In the law of charter parties, warranty has a wider sense. If a vesfeel is warranted seaworthy or warranted to be at a certain place, and the vessel is not seaworthy or is not at that place, the effect is two-fold. The charterer may sue the owner of the vessel for breach of a, promise^ and, furthermore, the charterer is himself excused from performing his promise;® that is, war- ranty means not only a promise but also that the promise is so es- sential that performance of it is a condition precedent to the obli- gation of the other party. Where the word is used in mercantile contracts other than contracts to sell or sales, this is the meaning ordinarily given to it.-"* In the law of sales in England a N. J. L. 496, 20 Am. Rep. 425; Fogel incident, such as the time or place r. Brubalcerj 122 Pa. St. 7, 15 Atl. of shipment, is ordinarily to be re- 692; Jones v. George, 56 Tex. 149, 42 garded as a warranty in the sense Am. Kep. 689, 61 Tex. 345, 48 Am. which that term is used in insurance Rep. 280. Contrary usage, however, and maritime law — that is to say, is equally common. a condition precedent, upon the fail- ' 5Iay, Inisurance, § 151. ure or nonperformance of which the ' Corkling v. Massey, L. R. 8 C. P. party aggrieved may repudiate the 395. whole contract.'' So Williams. J., "Olive V. Booker, 1 Ex. 416; Bent- in Behn v. Burnes,s, 32 L. J. Q. B. sen V. Taylor, [1893] 2 Q. B. 274; 204, 206, says: " But with respect to Lowber v. Bangs, 2 Wall. 728, 17 statements in a contract descriptive L. ed. 768 ; Davison v. Von Lingen, of the subject-matter of it, or of 113 U. S. 40, 28 L. ed. 885. some material incident thereof, the '° Thus in Norrington v. Wright, true doctrine established by principle, 115 U. S. 188, 6 S. Ct. 12, 29 L. ed. as well as authority, appears to be, 366, Mr. Justice Gray said of such a generally speaking, that if such de- contraot that " 'A statement,' in a seriptive statement was intended to mercantile contract, descriptive of the be a substantive part of the contract subject-matter, or of some material it is to be regarded as a warranty, Conditions and Waekanties, 223 third meaning is given to warranty ; namely, a promise " with reference to goods which are the subject of a contract of sale but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated." That is the warranty is a promise, but performance of the promise is not a condition. This variety of meaning attached to the word " war- ranty " is a source of confusion, and it is obviously a service to the law to limit the word to one meaning. Accordingly in the Sales Act the word is limited to what is probably its essential meaning — a material promise. It makes no difference under the Sales Act whether this promise is or is not collateral, and as pro- vided in a later portion of the Sales Act, a breach of warranty in a contract to sell or a sale is followed by the same consequences as the breach of a material promise in other contracts; namely, the innocent party has a right to rescind or repudiate the trans- action. What promises may be called collateral is indeed so diffi- cult a question that the results reached under the English law cannot always be reconciled with the general statements of the rules of that law. It is believed that no greater simplification can be made in the law of sales than to make it of no importance whether an obligation which forms part of a bargain is col- lateral or not; and that this simplification is obtained without danger of injustice. § 182. Requirements of warranty under the English law. — It is commonly said by the English authorities, and by the American authorities which follow the English law, that a warranty is collateral. It is not made wholly clear whether by this is meant collateral in^'form or in legal effect. There is no doubt that under the English law a warranty is collateral in legal effect, but tbe that is to say, a condition on the fail- the warranty loses the character of ure or nonperformance of which the a. condition, or, to speak more prop- other party may, if he he so minded, erly, perhaps ceases to be available repudiate the contract in toto and be as a condition and becomes a war- so relieved from performing his part ranty in the narrow sense of the of it, provided it has not been word, namely, a stipulation by way partially executed in his favor. If, of agreement, for the breach of which indeed, he has received the whole, or a compensation must be sought in any substantial part, of the consid- eration for the promise on his part. 224 FOEMATION OF THE CoNTEACT. iinporbant question remains, How is a wairanty to be identified as such i How is it to be distinguished from other promises ? This is something whi'^h the English law and English lawyer has never been willing ox perhaps able to define entirely.-'-' Three tests may be supposed, each one of which has doubtless had some weight. These three tests are: (1) Was the promise collateral in form? (2) Was the transaction an executed sale or an execu- tory contract to sell? (3) Did the transaction relate to specific goods ? These tests may be considered in order. § 183. A warranty need not be eoll-at-eral in form. — It is prob- able that the form in which the words of the seller are put is in- stinctively regarded as the essential feature by most lawyers adopt- ing the English doctrine. There is no doubt that the typical "svar- ranty is collateral in form. The seller sells a horse and, as a separate statement, says that he warrants him to be sound. In the early English law, it is probable that all warranties -^vere ■collateral in form, but in the early English law promises implied in fact were not recognized and the doctrine of caveat emptor was carried so far that unless the seller expressly said that he war- ranted the goods there was no obligation imposed upon him in regard to their quality."'^ In the nature of the case, therefore, the seller had to make a separate and distinct promise; that is, a promise collateral in iorm. At the present day, however, it is clear in England and elsewhere that a promise need not be collateral in form in order to constitute a warranty. When A. contracts to sell B. a sound horse, there is no collateral promise. "In the Sale of Goods Act, § 11 intention of the parties in each case. (1. B.), it is said that whether But in the law of contracts, in the a stipulation in a contract is a con- determination of each case the court dition or a. warranty " depends in has tlie further aid of considering each case on the construction of the the materiality of the stipnlation in contract. A stipulation may be a question. The Sale of Goods Act af- condition, though called n warranty fords no sucli clue, in the contract." The authority for " Chandelor v. Lopus, Dyer, 75 A, this provision in tlie Sale of Goods note, Croke Jac. 4. In this case it Act is Graves v. Legg, 9 Ex. 709, and was held " that the bare aiBrmation other cases where it. is similarly laid that it was a bezoar stone without down that whether the performance warranting it to be so is no cause of of the duty of one party to the con- action." See further Ames, History tract is a condition precedent to tlie of Assumpsit, 2 .Harv. L. Rev. 9, and liability of the other depends on the following. Conditions and Waeeanties. 225 Yet if A. delivers to B. an unsound horse and B. takestitle to him, Ji. is a warrantor of the horse's soundness with precisely the same consequences as if he had sold the horeenvith a separate statement, " I warrant him sound."^^ Further, it may be supposed that speci-fied goods are sold in compliance with an order describ- ing the goods desired. A buyer asks for " strap leaf red top turnip seed," " or " large Bristol cabbage seed," "^^ or " rape seed " " or bulbs of a named variety." ISTo agree- ment to sell precedes the actual sale, but when the seller furnishes goods, he is held to warrant that the -goods are of the kind asked for, yet the description is not collateral in form. It may be added that it is an undesirable policy to make im- portant distinctions in substantial rights turn upon the form of words in which the transaction was put. Parties do not use language in their ordinary dealings with reference to such dis- tinctions. A. says to B., ''I will sell you this sound horse 'for $100." Such a promise of soundness is certainly not collateral. Suppose, however, A. said, " I will sell this horse for $T00," and B. inquiring, " is he soxmd ?" and A. replies, " Yes." It may be ■said that the -statement of soundness is collateral, but a rule "which distinguishes the rights of the parties in these two cases is not to be commended. § 184. May there be a collateral ^warranty in an executory con- tract to sell 1 — It is sometimes held that where a seller makes a promise in regard to the goods, there is always a warranty, in the limited English sense of the word, if the property in the 'goods passes at the time; and, on the other hand, if the property does "Sale of Goods Act, § 11 (1) (o) ; "White v. Miller, 71 N. Y.llS, 27 Wolcott V. Mount, 36 N. J. L. 262, Am. Eep. 13, 78 N. Y. 393, 34 Am. 13 Am. Eep. 438, 38 N. J. L. 496, .20 Eep. 544. Am. Eep. 425; Morse v. Union Stock ^"Hoffman v. Dixon, 105 Wis. 315, Yards, 21 Or. 289, 28 Pae. 2, 14 81 N. W. 491, 76 Am. St. Eep. 916. L. Tl. A. 157. In New York and some "Edgar v. Breck, 172 Mass. "581, ■other States if "B. had taken title to 52 N. E. 1083. There "n'as in this the horse after an opportunity to in- case an agreement to sell before the "spect him and the unsoundness was completed sale. The cases last cited capable of being discovered by inspec- are American decisions but the Eng- •tion, A. would be under no further lish law is presumably the same, liability. -See infra, % 489. See Allan v. Lake, 18 Q. B. 560. " Wolcott V. Mount, 36 N. J. TJ. Compare, however, Varley v. WMpp, 262, 13 Am. Eep. 438. [1900] 1 Q. B. 5r3. 15 226 Formation of the Conteact. not pass, a promise of the seller, however expressed, in regard to the quality of the goods, is a condition in the English use of that word ; that is, the buyer need not take the goods.'* This does not seem, however, the view adopted by the Sale of Goods Act.-*^* In this country there are a number of decisions holding that an executory contract to sell may contain a collateral warranty. In New York and some other States it is held that acceptance of goods imder an executory contract to sell ordinarily waives any patent defect in the goods but that such an acceptance does not waive a right of action on an express warranty in such a con- tract.^'^ In England if it be admitted that there may be a true warranty in an executory contract, it must necessarily follow from the words of the Sale of Goods Act that in such a contract the buyer must accept the goods although not in conformity with the warranty, and must seek his redress in cross-action, counter- claim, or recoupment. If this is the English law, however, it may be doubted whether it would be followed even in such States as profess to follow the English law of warranty. The rule seems general in the United States that the buyer may reject the goods if they fail to conform to a warranty of quality^' or of title.^^ If the distinction between a warranty collateral in char- acter and other promises of the seller in regard to the goods is to be allowed to affect the substantial rights of the parties, it is probable that the transfer of title would furnish the best because the most clearly defined test. And although the distinction is not commonly put in that form, the law of those States which purport to follow the English law of warranty is perhaps most accurately expressed by the rule that in any case where the seller's promise is executory the buyer may refuse to accept the goods if they are not in accordance with the seller's promise, what- " This view is tal^en in Smith's '° See infra, § 489. Leading Cases, and in Benjamin, ^' Rubin v. Sturtevant, 80 Fed. Rep. Sale (5th Eng. ed.), 1003. 930, 51 U. S. App. 286, 26 C. C. A. "Section 11 (1) (b) necessarily pre- 230; Owens v. Sturges, 67 111. 366; supposes the possibility of a war- Boothby v. Plaisted, 51 N. H. 436, ranty which would not give a right 437, 12 Am. Rep. 140. to reject the goods in " a contract of '' Nevels v. Kentucky Lumber Co., sale." " Contract of sale " is defined 108 Ky. 550, 56 S. W. 969, 94 Am. in § 62 (1) as including an agree- St. Rep. 388. ment to sell as well as a, sale. Conditions and Waeeanties. 227 ever form that promise may have taken ; and, on the other hand, if the buyer has become owner of the goods, he cannot thereafter return them.''* § 185. Specification of the goods as an essential of collateral warranty. — A collateral warranty undoubtedly ordinarily applies to specific goods. In the typical case the seller at the time of selling a specified chattel warrants its qualities. Even in the case where the seller contracts to deliver goods of a particular kind and later delivers goods in attempted fulfillment of the con- tract, whereby according to the English law his obligation in re- gard to the quality of the goods becomes a warranty,^* the goods have been specified before the seller's obligation is treated as a collateral warranty. JSTecessarily the possibility of a collateral warranty in regard to unspecified goods can occur only in execu- tory contracts to sell. In regard to such a contract the question seems to be similar to that discussed in the preceding section. If a collateral warranty is possible in the case of an executory contract to sell, it seems that such a possibility is not precluded though the goods are unspecified at the time of the bargain. If the seller's promise to sell his horse " Dobbin " next month with a warranty of soundness imposes merely a collateral obligation on the seller, so that the buyer is obliged to take the horse even though imsound on the day named, it will follow that if the seller promises to sell next month a black horse which he will warrant sound, the buyer there, also, cannot claim that the soundness of the horse is such a part of the seller's promise that unsoundness of the horse enables the buyer to refuse to take title. In either of these cases it is probable that the American law would in any jurisdiction allow the buyer to refuse the horse if not sound,^' and it may be that in such a case as this the English court would make use of the privilege given by the statute to hold that " a stipulation may be a condition though called a warranty in the contract." ^^ =°See further infra, §§ 600, 608. 259; Owens v. Sturgea, 67 111. 366; =*Sale of Goods Act, § 11 (1) (o). Bootliby v. Plaisted, 51 N. H. 436, See further infra, § 205. 437, 12 Am. Rep. 140. ^ Rubin V. Sturtevant, 80 Fed. Rep. =' Sale of Goods Act, § 11 (1) (6). 930, 51 U. S. App. 286, 26 C. C. A. 228 FOEMATION OF THE CoNTEACT. § 186. Express conditicms. — An express condition may qualify either the obligation of the seller or that of the buyer ; or, it may qualify the obligation of both. This last effect is necessarily produced where the condition is said to be a condition of the contract or sale. Instances of this sort may readily be supposed. The commonest are conditions requiring valuation, or conditions requiring the arrival or acquisition of the goods by the buyer. Such conditions protect both parties. If ■ the condition does not happen, neither party is responsible. On the other hand there may be conditions which qualify merely the obligation of the buyer to take the .goods or the obligation of the seller to sell and deliver. Common instances of condition qualifying only the obli- gation of the buyer to take the goods are conditions that the goods shall be satisfactory to the buyer or to a third person, or that they shall be shipped or delivered within a certain time. Conditions qualifying only the seller's obligation to sell have no .great ^-ariety because a contract which excuses the seller from selling in a particular contingency generally excuses the buyer from buying in the same contingency. The seller's obligation to transfer title is, however, frequently conditional on payment of the price by the buyer. The commonest type of conditional bar- . gains, so common as to;have appropriated to itself the name " con- ditional sale," is of this type, as is the seller's obligation in a cash sale. In bargains of both these kinds the seller's obligation to transfer title is expressly conditional on the payment of the price by the buyer. In the former, possession is immediately transfeiTed to the buyer but credit given for the price; in the latter, no credit is contemplated. Some of the common types of condition that liave thus been referred to may be now treated somewhat more in detail. Bargains conditional upon valuation .have already been dealt with,^^ so that further treatment of that topic is imnecessary, and conditional sales and cash sales are dealt with in a later chapter.^® Before taking up the express con- ditions commonly found in bargains, however, it is desirable to say a few words in regard' to implied conditions. For the lan- guage in which a stipulation is couched may have important re- " Supra, §§ 173-177. ^^ See infra, c. X, §32-4 et-seq. Conditions and Waeeanties. 229 suits. Whether words in question create a promise- or a condition, or both, should always be a preliminary inquiry. § 187. Implied conditions.— The term " implied conditions" is applied ambiguously in the law both to conditions intended by the- parties but not expressed in so many words, anxi more often to conditions imposed by law because of the inherent injustice of- allowing a promise on one side of a bilateral contract to be- en- forced when the counter-promise has been broken. These- types of condition shade into one another by imperceptible^ gradations, and in contracts to sell especially it is frequently not easy to say absolutely to which type a particular case belongs. Thus, if A. promises to transfer a horse and B. promises to pay $1,000, B.'s promise is in terms absolute. A condition in such a bargain that A. must deliver the horse before B. can be liable for the price is one imposed by law. There is nothing- in the language of B.'s promise on which such a result could be- rested. If, on the other hand, B. had promised to- pay $1,000= on delivery of the horse, it would be equally clear that B.'s promise was expressly conditional. The intermediate cases which are perhaps commoner than those at either extreme- are more difficult to classify. If B.'s promise was, " I will pay $1,000 for him," it may seem that the condition nf de- livery is clearly expressed by the words " for him " but it is to be observed that there is no impossibility in paying -the- price in advance, and that if the price of the horse is so paid, the money is as truly paid " for him " as if the price had been paid simul- taneously -with delivery.^^ Probably a fair constraction would generally hold such words, however, to make the promise to pay- expressly conditional on delivery. Suppose again, the buyer's; promise is to "buy him for $1,000," the word "buy" of itself imports more than a promise to pay the price; it means to accept the goods and pay for them. If so, the word " buy " of itself imposes a condition which if called " implied " is not implied in the sense of imposed by the law. Fortunately in most- "Many of the early cases on con- These cases are re-piewed by Lord- ditional contracts -were expressly con- Holt in Thorp v: Tliorp-, 12 Mod. cemed. -with the problem of -whether 455, and the rules laid down by him the -svord " for " created a condition. for deciding the queistion. 230 FOEMATION OF THE CoNTEACT. cases it does not lead to a material difference in the result whether the condition is express or implied, although it may do so. In case of even a slight breach of an express condition the promisor is as a rule excused.^" In the case of condition imposed by the law, however, on grounds of justice, courts properly can and do use greater freedom in regard to releasing or holding the promisor. If the breach of obligation on the other side has been material, the promisor is excused, but not if the breach is trifling. Again if the breach occiirs after the contract has been partly performed, the court will be more ready to excuse a comparatively small breach than if it occurred before any performance.''^ In any particular case, therefore, it is important to note whether a stipu- lation expressly or by fair construction of the language used qualifies the defendant's promise, or whether the stipulation in terms merely imposes an obligation upon the plaintiff so that such excuse as the defendant may have because of the plaintiff's nonperformance of the stipulation is due to a condition imposed by the law. § 188. Sales to arrive. — A bargain either in the form of a con- tract to sell or of an immediate sale by general usage may be called a "sale to arrive." ^^ In a contract to sell, the arrival of the goods is a condition precedent to any sale. In a sale, if the goods existed at the time of the bargain but do not arrive, the condi- tion is subsequent, the property in the goods transferred by the "Page, Contracts, § 61; Langdell, ig no liability on either side unless Summary of Law of Contracts, § 157. the goovls arrive, which is the point ^' These principles are stated in courts have been primarily interested effect in Graves v. Legg, 9 Ex. 709. in establishing. For this point it is See further Langdell, Summary of immaterial whether the title passed Law of Contracts, § 158 et seq. subject to be divested or whether the "^ It is true that in Neldon v. bargain was executory. It seems im- Smith, 36 N. J. L. 148, the court possible to doubt, however, that the said of a sale to arrive : " The contract parties may pass title to existing is executory and does not pass the goods subject to a condition subse- property in the goods to arrive. It quent if the goods do not arrive ; and is merely an agreement for the sale where goods in course of transporta- and delivery of the articles named at tion are specifically described, and a future period when they shall the parties expressly state that they arrive," and similar statements may have been bought and sold, it seems be found in other cases. Shields r. most accurate to give their language Pettie, 4 N. Y. 122; Dike v. Eeit- its natural meaning, linger, 23 Hun, 241. Doubtless there Conditions and AVaheanties. 231 ain being divested by the failure to arrive. If the vessel arrives but without the goods which were the subject of the bargain, whether the seller's contract was conditional not simply on the arrival of the named vessel but also of the goods is a question of fact. But generally as the power of the seller to deliver the goods and the value of the bargain to the buyer both depend on the arrival of the goods, the true construction will be that the condition is not satisfied by the arrival of the vessel.^^ There may, however, be cases where the only condition is that of the arrival of the vessel, so that if the vessel arrives without the goods the seller is not protected from liability on his promise to sell.^* The converse case is not so clear. Suppose goods arrive but the vessel does not, or the goods arrive and the vessel also arrives but not carrying the goods. Here again the question is one of construction. If the parties clearly indicate by their language that the goods must arrive in the named vessel, there will be no liability otherwise.^^ As it is the arrival of the " In Boyd v. Siffkin, 2 Campb. 326, the bargain was for the sale of " 32 tons, more or less, of Riga Rhine hemp, arrival per Fanny Almira." It was held that the seller's obligation was conditional not simply on the arrival of the vessel, but of the hemp. He was, therefore, held not liable when the vessel arrived with- out the hemp. So in Hawes v. Humble, 2 Campb. 327, note "for and by your order, on arrival, 100 tons, etc." So in Johnson v. Macdonald, 9 M. & W. 600, a memorandum of sale of 100 tons of nitrate of soda, " to arrive ex Daniel Grant," provided, "should the vessel be lost this contract to be void." The vessel arrived without the goods on board. The court held the contract conditional not simply on the arrival of the vessel but also on the goods being in the vessel. In Vernede V. Weber, 1 H. & N. 311, the bargain was for the sale of 400 tons of Ara- can Necrensie rice per Minna " at lis. 6d. per cwt. for Necrensie or lis. for Larong, the latter quality not to exceed fifty tons, or else at the option of the buyer to reject any ex- cess." The vessel arrived without any Necrensie rice but with 285 tons of Larong rice and 159 tons of a third variety. The court held the buyer was neither entitled to damages for failure to deliver Necrensie rice nor for failure to deliver either the whole cargo that arrived or the portion thereof consisting of Larong rice. Compare this case with Simond v. Braddon, 2 C. B. (N. S.) 324. =*Hale I'. Rawson, 4 C. B. (N. S.) 85. This was a contract to sell tal- low " to be delivered on safe arrival of the Countess of Elgin." The ves- sel arrived without the tallow and the seller was held liable. See also Dike V. Reitlinger, 23 Hun, 241. »" In Lovatt v. Hamilton, 5 M. & W. 639, a sale of palm oil " to arrive per Mansfield " had this express stipula- tion : " In case of nonarrival, or the vessel's not having so much in after delivery of former contracts, this contract to be void." A part of the cargo of the Mansfield was transferred into another vessel while en route; 232 FOEMATIOIS' OF THE CoNTEACT. goods, however, whicli makes it possible to perform the contract, and the' arrival of the vessel merely aft'ects the means or time of performance, a contract may well bear the contrary construc- tion.^* Whether the seller promises that the condition of the contract shall happen is also a question of construction. It is well settled, however, that the words " to arrive" ox their equiva- lent, do not of themselves import a promise that the goods shalL arrive. ^'^ The same effect was given in a ISTew York decision to the words attached to a sold note, " on^ board " a specified vessel, known to be then at sea.^'* Not infrequently, however, the seller promises or warrants that the goods shall be shipped, or that the goods are on board at the time of the- bargain, or that the goods are of a particular- quality.^^ Some of the early cases not only did the oil aafely arrive on tliis second vessel but the Mansfield also arrived. The court, however, held that it was clearly a. condition, precedent to the buyer's right to claim' the oil that it should arrive ini the Mansfield. "In Harrison'!-. Fortlage, 161 U. S. 57," 16 S. Ct. 488, 40- L. ed. 616, there was a contract to sell 2,500 tons of sugar " to be shipped per steam- ship Bmpresff of India, no arrival, no sale " This amount of sugar- was shipped orr the vessel n.uned but 700 tons were transhipped en route into another vessel. Both vessels arrived safely but the buyers refused to take the cargo of either on the ground that the E-mpress- of India, did not carry the required cargo and, the other ves- sel was not that named in the con- tract. The court held, however, that the only condition in regard to the vessel was shipment in that vessel, the condition in regard to arrival relating only to the' goods., Compare with this case Idle v. Thornton, 3 Campb. 274, a contract for tallow " on arrival ex Catherina Evers " and " if it should not arrive before the 31st of December the bargain to be void." The Catherine Evers was wrecked but most of the tallow was isaved and. could have been forwarded to the port of destination before the Slst of De- cember. It was held that the seller w-as not liable for failure to forward it, at least, unless the buyer so re- quested, and indemnified the seller. =" Johnson v. McDonald, 9 JI. & W. 600.; Neldon v. Smith, 36 N. J. L. 148; Abe Stein Co. v. Robertson, 167 N. y. 101, 60 N. E. 329; Rogers c. Woodruff, 23 Ohio St. 632, 13 Am. Rep. 276. See also Hale v. Eawson,. 27 L. J. C. P. 189. ^'Sliields V. Pettie, 4 N. Y. 122. "Abe Stein Co. v. Robertson, 167 N. Y. 101, 60 N. E. 329'. In this case the' memorandum of the bargain stated that there were sold " 85,000 Tein-Sin goat iskins " of specified, quality which were " expected to ar- rive." By letter the bargain was modified by the addition of the con- dition " no arrival, no sale." Goods- were shipped by the defendants and duly arrived. The court held these goods were "obviously intended to be. furuiahed under the agreemen.t,f' but they were not of the quality the con- tract called for. It was held that the seller was liable for their defective character. The condition imposed by the words " expected to arrive," and '■ no arrival, no sale," applifld only COJTDITIOITS AND WaeEANTTES. 233 seem to^ have- gone to an unreasonable extent in holding the' seller- free from any promise -whenever' goods of the- particular' descrip^- tion called for by the contract do not arrive;** It seems a more probable intent that the condition in regard to arrival is merely to protect the seller from risks of transportation as- -was held in the most recent ISTew York decision, though doubtless a broader intent is possible and if expressed, should be- made effectual If part of the goods arrive but part do not, -when the- condition ap- plies not simply to the arrival of the- vessel but' to the arrival of the goodSj neither the buyer is bound to take the portion: that arrives nor the seller to deliver it. The arrival of part of the goods is not the happening of the condition requisite for the validity of the- bargain.*-' § 189. Time. — A provision in regard to the time -when, goods must be furnished is very common in contracts to sell. The stipulation in regard to time may like the condition imposed by the. -words " to arrive " impose, a condition qualifying the obliga- tion of both, parties but of. itself impose, an obligation on neither. This is especially- likely to be the case -where the delivery of the goods on, time depends on wholly adventitious circumstances -^vith- to the risks of navigation, not to the any iron should arrive, or that arriv- shipment of proper goods. In Simond ing, it shoxild be of a particular V. Braddon, 2. C. B. (N. S.) 324, there quality. One hundred and fifty tons was an. express engagement by the of Gartshemi pig iron of the quality seller " to deliver -what is shipped on denominated No. 1 -was expected to his account and. in conformity 'with arrive by the Siddona, and the eon- his invoice." To the same effect is tract -was to the, effect, that if that Dike V. Eeitlinger, 23 Hun, 241. In quantity and quality of iron did so. Gorrissen v. Perrin, 2 C. B. (N. S.) arrive, one party should, sell and the 681, a sale of a specified number of other should receive it at a certain. baJfis " now on passage " was held to price per ton. The iron called for by import a warranty by the seller that the contract did not arrive, but iron these bales were theati on passage. of, a, different quality, and I. think. "Thus in Shields, v. Pettie,,4 N. Y. the contract was at an end." This 122, a contract was concluded in decision, seems inconsistent, with, the. these terms: "New York, July 19, later case of Abe Stein, Co. v. Eobert- '47. Sold for Messrs. Geo. W. Shields son, 167 N. Y. 101, 60 N. E. 329, &, Co., to., Messrs. Pettie & Mann,, 150 stated in the preceding, note. The tons Gartshemi pig iron, No. 1, at earlier New York case, is, however, $29 per ton, one-half at 6 mos., one- supported by Vernede v. Weber, 1, half, cash less 4 pr. ct., on board H. &. N. 311, stated SMpro, note 33. Siddoris. Thos. Ingham, broker." '"Vernede v. "Weber, 1 H. & N. 311; The, court said: "There was no war- Shields v. Pettie, 4 N, Y, 122, 124,. ranty, express or implied, either that 234 Formation of the Contract. out the control of either party. Thus in sales of goods to arrive a condition in regard to the time is not infrequently inserted, and if the goods arrive but not on time, neither party is liable.*^ Where the provision relating to time requires something that in its nature is within the povs^er of the seller, upon a proper construc- tion it will generally be found that an obligation is imposed upon the seller to conform to the stipulation as well as an excuse given to the buyer for refusing the goods if the stipulation is not ful- filled. Frequently contracts require shipment or delivery by a certain date. As it is settled that in mercantile contracts time is essential,*^ the buyer may refuse the goods unless the delay is very trifling, whether his promise is expressly conditional on the goods having been shipped or delivered on time or whether the stipulation in regard to time is wholly contained in the seller's promise.** A stipulation in time may qualify the seller's obligation " Alewyn r. Pryor, Ryan & Moody, 406. In this case the sale was of oil " on arrival " " but not to exceed the 30th day of June next." Tlie vcssei did not arrive until July 4th. In an action by the purchaser the court held the sellers had not agreed that the oil should arrive by June 30th and also said the buyer was excused from any obliga,tion to take it if it did not. A similar condition may be found in Idle v. Tliornton, 3 Campb. 274. "Bowes V. Shand, 2 A. C. 455; Norrington r. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. ed. 366; Cleveland Rolling Jlill r. Rhodes, 121 U. S. 25.3, 7 S. Ct. 8S2, 30 L. ed. 920; Camden Iron Works v. Fox, 34 Fed. Rep. 200; Cromwell v. Wilkinson, 18 Ind. 365 ; Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 58 S. E. 200; White-Braneh-McConkin- Shelton Co. v. Carson, 25 Ky. L. Rep. 1230, 77 S. W. 366; New Bed- ford Copper Co. !,. Southard, 95 Me. 209, 49 Atl. 1062; Salmon v. Boy- kin, 66 Md. 54], 7 Atl. 701; Crane V. Wilson, 105 Mich. 544, 63 N. W. 506; Redlands Assoc, r. Gorman, 76 Mo. App. 184; Denton i: Mclnnis, 85 Mo. App. 542 ; Frost-Trigg Lumber Co. V. Forrester, 124 Mo. App. 304, 101 S. W. 104; Booth v. Rolling Mill Co., 60 N. Y. 487; Higgins v. Dela- ware, etc., R. R. Co., 60 N. Y. 553; Blossom r. Shotter, 59 Hun, 481; afTd., without opinion, 128 N. Y. 679, 2!) N. E. 145; Sun Publishing Co. v. Minnesota Type Foundry Co., 22 Or. 49, 29 Pac. 6; Fountain City Drill Co. r. I^indquist (S. Dak.), 114 N. W. 1098; Goff v. Pacific Coast SS. Co., 9 Wash. 386, 37 Pac. 418. Com- pare Woolfe V. Home, 2 Q, B. D. 355; KaufFman ; . Raeder, 108 Fed. Rep. 171, 47 C. C. A. 278; Montgomery v. Thomson, Cal. , 92 Pac. 866; Re Canadian Niagara Power Co., 30 Ont. 185. "In Hoare r. Rennie, 5 H. &, X. 19, the action was on a contract for " 667 tons of iron to be shipped in June, July, August, and September, in about equal portions." The buy- ers when sued for not accepting the iron when tendered set up the de- fense that the shipment in June was of about twenty tons only. The court held the defense sufficient. Conditions and Waekanties. 235 to sell the goods instead of the buyer's obligation to buy them. Thus it is not infrequently provided in contracts to sell that the buyer shall take delivery at a certain time. If the seller's obligation is made expressly conditional on the buyer's performing the stipula- tion as to time, there can be do doubt that the seller is excused if the buyer fails to observe the condition. Even though the seller's promise be not expressly conditional, the requirement as to time being contained solely in the promise of the buyer, in view of the general principle referred to above that time is essential in mercantile contracts, the buyer's delay should excuse the seller and so it is generally held.*'' Where payment of the price and transfer of the property in the goods are by the agree- ment to be simultaneous, default in payment by the buyer v^ill also mean default in taking the property, but in agreements vehere pay- ment of the price or part of it is to precede final performance by the seller a condition in regard to the time of performance of the buyer's payment of the price also may be imposed. How far the This case has been somewhat criti- cised in England, probably without reason, but only on the point that the defective delivery of one instal- ment was allowed to excuse the buy- ers from taking later instalments. In Bowes v. Shand, 2 A. C. 455, contracts for the sale of rice to be shipped during the months of March and April, 1874, were involved. The House of Lords held an action could not be maintained by the seller be- cause the rice tendered under the contract was mostly shipped in Feb- ruary. In Norrington t'. Wright, 115 U. S. 1S8, 6 S. Ct. 12, 29 L. ed. 366, the contract provided for the sale of 5,000 tons of rails for ship- ment at the rate of about 1,000 tons a month, beginning February, 1880. The buyer was held entitled to throw up the contract after having received but 400 tons by February shipment. See also Cleveland Rolling Mills v. Rhodes, 121 U. S. 255, 7 S. Ct. 882, 30 L. ed. 920. •"Cresswell Co. v. Mastindale, 63 Fed. Rep. 84, 27 U. S. App. 277, 11 C. C. A. 33; Loudenback Fertil- izer Co. V. Tennessee Phosphate Co., 121 Fed. Rep. 298, 61 L. R. A. 402, 58 C. C. A. 220; Middle Division Elevator Co. v. Vandeventer, 80 111. App. 669. See also Worthington v. Gwin, 119 Ala. 44, 24 So. 739; Ham- ilton V. Thrall, 7 Neb. 210. These are cases of instalment contracts but they necessarily involve the principle that delay in taking ex- cuses failure to deliver. The Eng- lish decision of Simpson v. Crippin, L. R. 8 Q. B. 14, decides that delay in taking some instalments is not a ground for refusing to deliver later instalments. In this the case is opposed to the decisions cited above, but it does not go so far as to hold that the buyer's delay as to any in- stalment would not excuse delivery of that instalment. 236 FOEMATIOM' OF THE Coi^TEACT. mere promise on the part of the buyer to pay at a certain date con- stitutes an implied condition qualifying the seller's obligation to sell and deliver, so that unless payment is made or tendered by that day the seller is excused, will be considered hereafter.*® It is enough here to refer to the possibility of an express condi- tion excusing the seller if payment is not made promptly. The time at which subsidiary obligations of buyer or seller are to be performed may also be essential.^" § 190. Notice. — Contracts to sell are frequently conditional on notice of some fact. The condition may be attached to the obli- gation of either party. It may be express or derived by implica- tion*^ from the promise of the other party or the nature of the bar- gain' may be such that it is a condition implied in fact or inherent condition.*'' The principle on which notice is sometimes held an " See infra, § 457. "In Lorymer v. Smith, 1 B. & C. 1, a bargain for the sale of wheat in the seller's warehouse was made on September 11th. On September 19th, the buyer called and asked leave to inspect it. The seller refused to al- low tlie inspection in bulk to which the buyer was entitled and the latter thereupon said he would not have the wheat. A few days later the sel- ler offered to allow proper inspection, and on the buyer's refusal brought this action, but it was held that the action could not be maintained. ■" Sometimes questions of construc- tion may arise even though the con- dition is express. In Main v. Fields, 144 N". C. 307, 50 S. E. 943, 11 L. R. A. (N. S.) 245, however, a condition requiring notice of defects to be sent by registered letter was held satisfied by notice sent in an un- registered letter, which reached its destination. " In Busk r. Spence, 4 Campb. 329, the seller agreed to sell flax to be shippea, " and as soon as he knows the name of the vessel in which the flax ^111 be shipped he is to mention it to the buyer." A delay of eight days on the part of the seller in mentioning the name of the vessel to the buyer was held to justify the buyer in refusing to accept the goods. In this case the condition was de- rived from the seller's promise ; the contract did not in terms provide that tlie buyer should take the goods, only if the name of the vessel was promptly declared. In Graves v. Legg, 9 Ex. 709, a sale of wool was made on terms stated in the declara- tion, the contract adding near the end " the names of the vessels to be declared as soon as the wools were shipped." The buyer refused to ac- cept the sale and when sued set out in his plea that wool was a com- modity which fluctuated greatly in price and it was important to know the names of the vessels in which the wool was shipped in order to enable the buyer to make a resale promptly should he so desire. On demurrer he was sustained. The language of the contract as stated in the declaration does not make it' clear whether- the- requirement in re- gard to the names of the vessels waa Conditions and Waeranties. 237 inherent condition is thus expressesd in the leading case on the snb- ject : " The rule to be collected from the cases seems to he this, that "where a party stipulates to do a certain thing in a certain specific event "which may become kno"wn to him, or with which he can . make himself acquainted, he is not entitled to any notice, "unless lie stipulates for it ; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him." ^° This case, it is true, is not one relating to sales butthe principle therein laid down finds frequent application in the law of sales. Thus, a sale for a price " as great as that for which the seller should sell to any other man," imposes a condition "upon the buyer's obligation, and unless the seller performs that condition by giving notice, he cannot hold the buyer.'-"- So where the seller is to manufacture goods and the buyer is bound to come for them, the buyer's obligation is qualified by the con- dition that the seller give notice.'^ So if goods are deliv-erable at a particular place, but the time for delivery is not specified, the seller must give notice of the time chosen before he can put the seller in default.'^ And in any case where either party has an .option in regard to any detail of performance by the other party, notice of the choice made is necessarily a condition of the right to hold the other party liable. This option may relate to .intended as a condition qualifying °° Vyse v. Wakefield, 6 >M. -■& W. the promise of the defendant to buy, 442. or was a promise on the part of the " Henning's Case, Cro. Jac. 432, eeller, in which case the buyer's ex- cjted in '"Vyse v. Wakefield, 6 M. & cuse would be based on a condi- yf^ 442 454. tion implied in law rather than ex- .^ Hunter v. Wetsell, 84 N. Y. 549, pressed. .The court discusses the gg j^^ ^^^ 5^^. g^gg ^^^ ^ United question rather ^on the latter assump- g^^,^^^ Gaslight Co., 149 N. Y. 300, tion, considering the materiality of ^^ ^^ ^ ^.^_ Lockhart v. Bonsall, the requirement for the buyer 3 pur- Tjoses. The 'buyer was held not liable. ' '',-„-, , , „ See also Alpena Cement Co. .. Backus, '' Empire State Phosphate Co. p. 156 Fed. Eep. 944, 84 C. C. A. 444; Heller, 61 Fed. Rep. 280, 20 U. S. Florence Wagon Works v. Kalamazoo App. 589, 9 C. C. A. 504; Henkle v. Co., 144 Ala. 598, 42 So. 77; Frontier Smith, 21 III. 238; Cullum v. Wag- Supply Co. V. Loveland, 15 Wyo. 313, staff, 48 Pa. St. 300. 88 Pac. 651. 238 FOKKATION OF THE CoNTEACT. time,®* place,®' quantity of goods,®® or method of shipment,®^ or to any other matter.®* § 191. Satisfaction of the buyer. — A common, condition in modem times qualifying the obligation of the buyer is that the goods shall be satisfactory to him. This type of condition is not confined to contracts to sell, and the same principle is applicable whether the contract relates to the sale of goods or requires some other performance. It has been questioned whether an agreement in which the promise of one party was conditional on his own satisfaction contained the elements of a contract, — whether the agreement was not illusory in character;®^ and doubtless if the condition is to be construed as meaning at the whim or pleasure of the promisor, the objection is well taken. This construction, however, seems inaccurate ; the intention of the parties may fairly be assumed to have been that satisfaction after the exereise of an honest judgment was required, but no more. The contract so construed has been almost universally upheld.®" In Xew York "Dingley v. Oler, 117 U. S. 490, 6 S. Ct. 850, 29 L. ed. 984; Colvin I'. Weedman, 50 III. 311; Posey r. Scales, 55 Ind. 282; Sousely v. Burns' Adm., 10 Bush, 87. 'MVarner r. Wilson, 4 Cal. 310; Weill r. American Metal Co., 182 111. 128, 54 N. E. 1050; Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Eep. 544; Lockhart r. Bonsall, 77 Pa. St. 53. "■ Kingman r. Hanna Wagon Co., 176 111. 545, 52 N. E. 328; Harrow Spring Co. r. Whipple Harrow Co., 90 Mich. 147, 51 N. W. 107, 30 Am. St. Rep. 421. " W^ackerbarth v. Masson, 3 Campb. 270; Armitage v. Insole, 14 Q. B. 72R ; Sutherland i:. Allhusen, 14 L. T. (N. R.) 660; Walton r. Black, 5 Del. 140; Dwight r. Eckert, 117 Pa. St. 490, 12 Atl. 32. '" Hinckley r. Pittsburgh Steel Co., 121 I'. S. 264, 30 L. ed. 967. The duty of the defendant to give direc- tions as to the drilling of rails which the plaintiff was to deliver to him was held to precede the plaintiff's obligation to perform, and the de- fendant was held liable for failure to give notice. A fortiori, the sel- ler would have been excused for fail- ure to deliver the rails had the action been brought by the buyer. So in Hurd V. Gill, 45 N. Y. 341, a refusal to designate a place where the plain- tiff might take sand from the de- fendant's land was held breach of a contract to allow the plaintiff to take sand at such a place as the defendant might designate. See also Aller r. Pennell, 51 Iowa, 5.17, - N. W. 385; Butler v. Butler, 77 X. Y. 472, 33 Am. Pep. 648. '"Gibson r. Cranage, 39 Mich. 49, 33 Am. Rep. 351. ^ Andrews !!. Belgfield, 2 C. B. (X. R.) 779 (sale of a carriage) ; Silsby JIfg. Co. V. Chieo, 24 Fed. Rep. Sfl.'? (sale of steam engine) ; Campbell Printing Press Co. r. Thorp, 36 Fed. Rep. 414 (sale of printing presses); Conditions and Waeranties. 239 and a few other States, however, another rule prevails. Unless the subject-m&tter of the contract is one involving personal taste, the contract is as matter of law construed as imposing upon the seller the requirement only that a reasonable man would be satis- fied with the performance.^^ This is an arbitrary refusal by the Re George M. Hill Co., 123 Fed. Rep. 86G, 59 C. C. A. 354 (sale of ma- chine) ; Hallidie v. Sutter St. Ry. Co., 63 Cal. 575 {sale of steel rope or cable) ; Zaleski c. Clark, 44 Conn. 218, 26 Am. Rep. 446 (making plaster bust) ; Goodrich c. Van Nortwick, 43 111. 445 (sale of a fanning mill) ; Buckley v. Meidroth, 93 111. App. 460 (sale of acetylene gas generator and fixtures) ; Tnman Mfg. Co. v. American Cereal Co., 124 Iowa, 737, 100 N. W. 860 (sale of machine for mill) ; Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463 (sale of suit of clothes) ; Gibson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351 (contract for enlarging a photograph) ; Wood Reaping & Mowing ilachine Co. v. Smith, 50 Mich. 565, 45 Am. Rep. 57 (sale of agricultural machine) ; Piatt V. Broderick, 70 Mich. 577, 38 N. W. 579 (sale of machine) ; United States Fire Alarm Co. v. Big Rapids, 78 Mich. 67, 43 N. W. 1030 (sale of fire alarm bell) ; Housding v. Solomon, 127 Mich. 654, 87 N. W. 57 (sale of horses) ; McCormick Ma- chinery Co. V. Chesrown, 33 Minn. 32, 21 N. W. 846 (sale of machinery) ; Magee v. Scott Lumber Co., 78 Minn. 11, 80 N. W. 781 (contract to tow logs) ; Gwynne r. Hitchner, 66 N. J. L. 97, 48 Atl. 571 (contract for em- ployment of color mixer) ; Hoffman V. Gallaher, 6 Daly, 42 (contract to paint a portrait) ; Tyler v. Ames, 6 Lans. 280 (contract to employ an agent) ; Gray v. Central R. R. Co., 11 Hun, 70 ( sale of a steamboat ) ; Moore V. Goodwin, 43 Hun, 534 (contract for crayon portrait) ; Haven !'. Russell, 34 N. Y. Suppl. 292 (contract for playwright to write a play) ; Gar- land V. Keeler, 15 N. Dak. 548, 108 N. W. 484 ( sale of machine ) ; Singerly V. Thayer, 108 Pa. St. 291, 2 Atl. 230, 56 Am. Rep. 207 (sale of hydraulic elevator) ; Seeley v. Welles, 120 Pa. St. 69, 13 Atl. 736 (sale of reaper and binder) ; Rossiter v. Cooper, 23 Vt. 522 (contract for labor) ; Mc- Clure V. Briggs, 58 Vt. 82, 2 Atl. 583, 56 Am. Rep. 557 (sale of organ) ; Tatum V. Geist, 46 Wash. 226, 89 Pac. 547 (sale of machine) ; Exhaust Ventilator Co. v. Chicago, etc., Ry. Co., 66 Wis 218, 28 N. W. 343, 57 Am. Rep. 257, 69 Wis. 454, 34 N. W. 509 (sale of ex- haust fans ) . These decisions do not all relate to sales of goods, but the principle in all is identical. It is expressed in the opinion of the court in Inman Mfg. Co. v. American Cereal Co., 124 Iowa, 737, 739, 100 N. W. 860, as follows : " The plain- tiff did not undertake to make and install machines which the defendant ought in reason to be satisfied with, and, therefore, ought to pay for, but he undertook to furnish machines which the defendant would be satis- fied with, and by this contract he is bound, provided only that the de- fendant acted in good faith, and was honestly dissatisfied. This much and no more the law requires of the con- templated purchaser, and if his dis- satisfaction is in good faith, it mat- ters not whether it be reasonable or unreasonable, for the law will not make contracts for persons sui juris." "Keeler v. Clifford, 165 HI. 544, 46 N. E. 248; Union League Club v. Blymer Ice Machine Co., 204 111. 117, 240 iFoEMATION 01" THE CoNTEACT. court to enforce the contract that the parties .made and seems unwarranted. Moreover it involves a distinction 'that is -almost impossible to make between cantraets .involving personal taste and those which do not. In truth the difference between contracts ia this respect is .almost wholly one of degree, and in many cases it must be impossible to decide upon which side of the line a .given case falls until the highest court has passed upon the case.^^ JSTo doubt there are contracts of which the true construction is that a condition of reasonable satisfaction rather than actual satisfaction is imposed. This is well illustrated ia a Massa- chusetts case.*"^ In determining the proper construction of any 68 N. E. 409; Boyd v. HaUowell, CO Minn. 225, 62 N. W. 125; Bamett V. Sweringen, 77 Mo. App. 64; Doll V. Noble, 116 N; Y. 230, 22 N. E. 406, 15 Am. St. 1i,ep. 398; s. c, sub nom. Ball 'r. NoWe, 5 L. R. A. 554; Hummel v. Stern, 164 N. Y. 603, 58 N. E. 1088; RicMson i\ Mead, 11 S. Dak. 639, 80 N. W. 131. »=In Doll !■. Noble, 116 N. Y. 230, '22 X. E. 406, 15 Am. St. Rep. 398; ■s. c, sub nom. Dall v. Noble, 5 "L. Tl. A. 554, a contract " to finish woodwork to the entire sat- isfaction of the owner " was held complied with by "finishing the ■work in a workmanlike manner. So in Hummel ,. Stern, 164 N. Y. 603, 58 N. E. 1088, the same doctrine was applied in regard to a contract for ventilating machinery which it was agreed should ventilate the premises to satisfaction of the buyer. On the other hand in Haven r. Eussell, '34 N. Y. Suppl. 29'2, a contract to write a play to the satisfaction of a the- atrical manager was held to make the actual satisfaction of the man- ager the only teat. So in Gray i'. Alabama Bank, 14 N. Y. Suppl. 155, a contract to make a lithographic design subject to a similar condition. ■So in Crawford v. Mail & Express Co., 163 N. Y. 404, 57 N. E. 616, a contract to write articles for a news- paper, a provision for the satisfac- tion of the defendant was held to mean actual satisfaction. It will be observed that the line of distinction between these cases is rather fine. The finish of "Hoodwork and the ven- tilation of a room are matters in- 'volving a 'good .deal of personal taste to some people — as much perhaps as the writing of a newspaper article. '^ Hawkins r. Graham, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422. In this case the buyer promised to pay for a system of heating upon its ■' satisfactory completion " and later the contract provided " In the event of the system proving satis- factory, and conforming with all the requirements as above provided for, the sum of fifteen hundred and sev- enty-five dollars as above provided for to be paid me, after such acknowl- edgment has been made by the owner or the work demonstrated." The court held, and with reason, "The last words, ' or the work demon- strated,' ofi'er an alternative to the owner's acknowledgment. They im- ply that, if the work is demonstrated, it is satisfactoi-y within the meaning of the contract, although the owner has not acknowledged it. The previ- ous words, ' and conforming with all CONDITIOITS AND "W^UIEANTIES. 241 contract it is protper to consider the suLject-matter of the bargain, and if this is a picture or other work of art no doubt that cir- cumstance tends to shoiv that the parties actually intended per- sonal satisfaction to be the sole determining factor. If on the other hand the subject-matter of the contract is a machine, as all a buyer would niaturally wamt would be that the machine should do its appointed work properly, it is more pTobable that a provision for satisfaction means satisfaction of a reasonable man, and in case of doubt the latter constriiction as the less harsh would properly be adopted. As was said by Holmes, J., in the Massachusetts case previously referred to, " When the con- sideration furnished is of such a nature that its value will be lost to the plaintiff, either wholly or in great part, unless paid for, a just hesitation must be felt, and clear language required, before deciding that payment is left to the will, or even to the idiosyncrasies, of the interested party. In doubtful cases, courts have been inclined to constnie agreements of this class as agree- ments to do the thing in such a way as reasonably ought to satisfy the defend'ant." ^* So long as the court does not refuse to give effect to an intention clearly expressed to make personal satisfac- tion of the buyer the test, no criticism can be made. However strongly the condition may be worded, and however fully a court may be disposed to give effect to it, it is everywhere agreed that the dissatisfaction of the buyer must be real and honest, in order that he may escape liability.''^ Therefore, not only if the buyer the requirements,' tend the same the defendant." See also Lockwood wajy. Taking these phrases with Mfg. Co. v. Mason Co., 183 Mass. 25, the test prescribed, and the system 66 N. E. 420. is ' to readily as well as easily heat " Hawkins v. Graham, 149 Mass. or raise the temperature at any point 284, 21 N. E. 312, 14 Am. St. Kep. * * * to the temperature of seventy 422. degrees (70°) Fahr. in the coldest == Richardson v. Coffman, 87 Iowa, weather that may be experienced,' 121; McCormick Co. v. Ockerstrom, «tc., we are of opinion that the satis- 114 Iowa, 260, 86 N. W. 284; Hawk- factoriness of the system and the risk ins v. Graham, 149 Mass. 284, 21 N. taken by the plaintiff were to be E. 312, 14 Am. St. Eep. 422; Lock- determined by the mind of a reason- wood Mfg. Co. v. Mason Co., 183 -able man, and by the external Mass. 25, 66 N. E. 420; Frary v. measures set forth in the contract, American Rubber Co., 52 Minn. 264:, not by the private taste or liking of 53 N. W. 1156, 18 L. E. A. 644. 16 242 FOEMATION OF THB CoNTEACT. expresses dissatisfaction either fraudulently, or merely because he has changed his mind about buying any goods of the sort, but also where he refuses to make any examination of the goods at all, the seller can recover.^® The principles stated in this section in regard to bargains conditional upon the buyer's satisfaction aipply with at least equal force to bargains conditional upon the satis- faction of third persons specified in the contract or named by the buyer.*'^ § 192. Waiver of conditions. — If a condition in the contract is wholly for the benefit of one party thereto, he may waive it.^* The other party cannot insist that the condition shall be per- formed. A common instance of this arises where a contract, as a lease or insurance policy, declares that it shall be void on the happening of a certain contingency. If the nature of the con- tingency is such as to show clearly that the provision was in- serted for the benefit of one party only, the meaning given to the word " void " is voidable at the option of this party, and if he does not choose to avoid the contract, he need not do so.^' Waiver is more commonly indicated by acts than words. Wherever the nonperformance of a condition would justify a party to the contract or sale refusing to proceed further with the trans- action his continuing to perform or to receive performance with knowledge of the breach of condition will be a waiver of the con- "" Siilney Scliool Furniture Co. v. taken from the quay." On arrival Warsaw School District, 130 Pa. St. of the cotton it was stored in a 76, 18 Atl. 604. warehouse but the sellers offered de- " Haegerstrand r. Anne Thomas livery orders for the cotton from the SS. Co., 10 Comm. Cas. 67 ; Arkansas- warehouse at quay weights and free Missouri Zinc Co. r. Patterson, 79 of expense, or to return the cotton Ark. 506, 96 S. W. 170. In the case to the quay and deliver it there, last cited it was further held that On behalf of the buyers it was argued the condition was not waived by the that their only obligation was to failure of the arbiter to make objeo- take the cotton from the quay on tions during the progress of the arrival, and that the sellers were work. bound to deliver it from the quay " Westbrook v. Reeves, 133 Iowa, on arrival. The court held, how- 655, 111 N. W. 11. ever, that the stipulation was evi- " 29 Am. & Eng. Encyc. Law, 1070. dently for the seller's benefit in In Neill v. Whitworth, 18 C. B. (N. S.) order to save warehouse charges, and 435, a sale of cotton to arrive con- consequently the buyer could not in- tained this clause, " the cotton to be sist on the provision. Conditions and Waeeanties. 243 dition. The commonest illustration of this is where goods are accepted which are not of the sort the seller has agreed to furnish. In such a case the seller by delivering goods of a different charac- ter not only fails to comply with his promise to furnish goods of a certain sort, but also fails to comply with the express or implied condition qualifying the buyer's promise to buy goods or pay the price. The acceptance of the goods by the buyer with knowledge of their character clearly is a waiver of the condition. It is not always clearly perceived that the question whether it is a waiver of the promise or obligation of the seller to furnish the proper kind of goods is an entirely different question. This question is fully considered subsequently.'^" § 193. Prevention, — Prevention of the happening of conditions is to be distinguished from prevention of performance of a prom- ise. Prevention of performance of a promise excuses the promisor from liability for nonperformance. Prevention of the perform- ance of a condition entitles the party prevented to a right of action although the condition has not been performed. It is true that an act of prevention will frequently be a prevention both of performance by the other party of his promise and also of the condition qualifying the liability of the preventing party. Thus where a buyer refuses to take goods properly tendered to him by the seller, he thereby prevents the seller from performing his promise to deliver, and also prevents performance of the implied or express condition of delivery qualifying his own promise to pay for the goods. In oases of this sort the same act operates as an excuse to the innocent party for his own. nonperformance, and also as an excuse for nonperformance of a condition qualify- ing the obligation of the party guilty of the prevention." The ™ §§ 481-489. Iowa, 352; Marshall v. Craig, 1 " United States v. Peck, 102 U. S. Bibb, 379, 386, 4 Am. Dec. 647 ; 64, 26 L. ed. 46 ; Clearwater v. Mere- Parker Vein Coal Co. v. O'Hern, 8 dith, 1 Wall. 25, 39, 17 L. ed. 604; Md. 197; Fredenburg v. Turner, 37 King, etc., Co. v. St. Louis, 43 Fed. Mich. 402; Hammer i:. Breidenbach, Eep. 768; Hood v. Hampton, etc., Co., 31 Mo. 49; Wilt v. Ogden, 13 Johns. 106 Fed. Eep. 408, 413; Tennessee 56; Stewart v. Keteltas, 36 N. Y. & C. R. Co. V. Danforth, 112 Ala. 80, 388; Gallagher r. Nichols, 60 N. Y. 20 So. 502 ; McKee v. Miller, 4 438 ; Dannat v. Fuller, 120 N. Y. 554, Blackf. 222; Shulte v. Hennessy, 40 24 N. E. 815; Vandegrift v. Cowles 244 FoEMATioisr of the Contract. condition, kowever, may be something which neither party has promised shall be performed, and in such a case it may be im- portant to distinguish between prevention as excusing a condition and as excusing performance of an obligation. Instances of this sort have already been referred to in connection with the condition of valuation in order to determine a price. ^Yhere the valuer is prevented by the wrongful act of one party from making the valuation or where the certificate of an architect or engineer is made a condition of the liability of one party and the giving of it is wrongfully prevented by him, the other party may recover although he has not performed the condition of the contraet,'^^ and the principle is general that prevention of a condition gives the injured party an excuse for the nonperformance of the con- dition.^^ It is often said that such prevention operates as a waiver of the condition. It would be better to reserve the word " waiver " for cases where the effect produced is the same as if the condition had been performed. This is not true in cases of prevention. AYhere one who has made a promise subject to a condition says to the promisee, in effect: "I will perform my promise though you do not perform the condition," the condition is properly said to be waived. Common instances of the sort arise where condition in insurance policies are waived, the insurance company be- coming liable to the same extent as if the condition has been per- formed.'^'* AVith such cases should be contrasted oases where the Eiiginopi-iTig Co., 101 N. Y. 435, 55 and rlplirer it at the station. The X. K. 041, 48 L. E. A. 6S5 ; Ashcraft government was held liable upon its V. Allen, 4 Ired. L. 90 ; Sutton r. contract. Tyrell, 12 Vt. 79. 'In United States '= See svpra. §§ 170, 177. r. Peck, 102 V. S. 04, 20 L. ed. 46, "Ruble r. ilasaey, 2 lud. 636; the plaintiff entered into a contract Leonard r. Smith, 80 Iowa, 194, 45 with an officer of the government X. W. 762 : Jones v. 'Walker, 13 B. to furnish a certain quantity of hay ilnn. 163, 50 Am. Dec. 557; Holt v. at It military station. The court Silver, 109 IMass. 435, 48 N. E. 837; found that the contracting parties Navigation Co. r. ^Yileox, 7 Jones L. contemplated hay to he cut in a, 4S1, "8 Am. Dec. 200; Bright V. particular valley, which was indeed Taylor, 4 Sneed, 159; Camp v. the only hay within hundreds of Barker, 21 Yt. 469; JoTies r. Rail- miles. The government officers fear- road Co., 14 W. Ya. 514. ing tliat the plaintiff would not be "See May on Insurance, § 404 et able to caTr\' out the contract al- seq. lowed other persons to cut the hay Conditions and Waeeanties. 245 promisor says, in effect : " Even though you perform the condi- tion, I shall not perforin my promise." In cases of this type the promisor is doubtless liable, but the measure of his liability is not the same. , His liability is- not for what he has promised but merely for the injury the plaintiff suffers by being deprived of the opportunity of acquiring a right to the performance which the promisor promised. '"^ § 194. Exjpress warranty. — The Sales Act thus defines express warranty. Sec 12. DEriNITION OF EXPRESS WARRANTY. —Any affirmation of fact or any pxoinise by the seller relating to the goods is an. express warranty if the natural tendency of such, affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirma- tion of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a war- ranty. The English Sale of Goods Act contains no definition of war- ranty except by stating the legal effect of a warranty. The term " express " warranty of itself is sometimes used in different senses. Sometimes the words are regarded as meaning only such promises as contain the word " warrant ;" more frequently, however, in modem times the term is treated as including all cases where the seller's warranty is derived from expressed language, no matter what may be the form of the language. This usage is observed in the Sales Act and in this book. The term " implied warranty" is reserved for cases where the law attaches an obligation to the seller which is not expressed in any form. § 195. Early law of warranty. — The law of warranty is- older by a century than special assumpsit, and the action upon the case on a warranty was one of the bases upon which the law of assump- "The simplest illvistration of this tween that price and the value of the is where one has contracted to buy performance upon which the payment and prevents the seller from deliver- of the price was conditional. In some ing the goods by refusing to accept jurisdictions, however, on special them. The seller is entitled not to reasoning, the seller in such a case the price which the buyer has is allowed to recover the full price, promised, but to the diflFerence be- See infra, § 562. 246 TOEMATION OF THE OoNTEACT. sit seems to have been built. The action on a warranty was re- garded as an action of deceit, and the words "warrantizando ven- didit " seem to have been necessary to make a good count as the words " super se assumpsit " later were in the action of assumpsit. The action was thus conceived of at the outset as an action of tortj^ This is, of course, also true of the action of assumpsit, but it was not long before assumpsit came to be regarded, as it is re- garded to-day, as distinguished from tort and rather to be classed in its essential nature with covenant than with trespass on the case. But the right of action on a warranty was not regarded at once as similar in its nature to assumpsit. It was, indeed, not until 1778 that the first reported decision occurs of an action on a warranty brought in assumpsit,'''' though from the language of the court in that case it appears that the practice of declaring in assumpsit had been common for some years before. It is probable that to-day most persons instinctively thiiik of a warranty as a contract or promise ; but it is believed that the original character of the action cannot safely be lost sight of, and that the seller's liability upon a warranty may sound in tort as well as in contract. In the early "Ames' History of Assumpsit; 2 by deed, I shall have an action of Harv. L. Rev. 1, 8. " Xotwithstand- covenant." Y. B. 11 Ed. IV, 6, pi. 11. ing the undertaking, this action also That is to say, the parol contract of was, in its origin, a. pure action of guaranty, so familiar in later times, tort. In what is, perhaps, the earli- was then unknown. The same judge, est reported case upon a warranty, and Brian, C. J., agreed, although Fitz. Ab. Monst. de Faits, pi. 160 Littleton, J., inclined to the opposite (1383) the defendant objects that view, that if a servant warranted the action is in the nature of cove- goods which he sold for his master, nant, and that the plaintiff shows no that no action would lie on the war- specialty but " non allocatur, for it ranty. The action sounding in tort, is a writ of trespass." There was the plaintiff, in order to charge the regularly no allusion to consideration defendant, must show in addition to in the count in case; if, by chance, his undertaking, some act by him, alleged, it counted for nothing. Moor that is, a sale ; but the owner was V. Russel, Skin. 104; s. c, 2 the seller, and not the friend or Show. 284. How remote the ac- servant, in the cases supposed. A tion was from an action of con- contract, again, is properly a promise tract appears plainly from a remark to act or forbear in the future. But of Choke, J. : " If one sells a thing the action under discussion must be, to me, and another warrants it to be as Choke, J., said, in the same case, good and sufficient, upon that war- upon a warranty of a thing present, ranty made by parol, I shall not have and not of a thing to come." an action of deceit; but if it was "Stuart v. Wilkins, 1 Dougl. 18. Conditions and Waekanties. 247 case of Chandelor v. Lopus/^ the court held that a declaration was insufficient after verdict which stated that the defendant affirmed a stone which he, as a goldsmith skilled in precious stones, sold to the plaintiff to he a bezoar stone whereas it was not, and the court said : " The bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action ; and although he knew it to be no bezoar stone, it is not material, for every one in selling his wares will affirm that his wares are good, or the horse which he sells is sound ; yet if he does not warrant them to be so, it is no cause of action." It seems a fair inference from this language that the use of the word " warrant " was necessary in order to make the seller liable, or at least words importing a direct and positive promise on the part of the seller. This attitude of the law is in conformity with the general unwillingness manifested by the early law to make any implications and to rely strictly on the exact form in which a transaction was put.^® § 196. later development. — The law of warranty in its modern form was largely fixed by Lord Holt. At the time of Lord Holt's decisions breach of warranty was still looked upon rather as a tort than as breach of contract, but the result was established that an affirmation of title in the seller though not known to be false, and though not put in the form of a warranty or express promise, was ground for liability.*" Though there is a dearth of authority dur- ™ Cro. Jac. 4. might instead take the broader ™ The eflfect of this decision has ground that the facts stated in the been somewhat discussed and it has declaration were insufficient on which been forcibly urged that the case has to base an action, no matter how no bearing upon any question of the pleading was drawn. That the the sufficiency in law of an affirma- court took this latter course is evi- tion to bind the seller, but merely dent from its language. The only decided that the declaration was im- importance of the deciiion to-day perfect in pleading evidence from is, in any event, not the point de- which warranty might have been in- cided but the language of the court f erred instead of pleading the trans- which is enlightening as to the view action according to its legal effect. taken at that time in regard to 1 Harv. L. Eev. 191 ; 1 Smith's Lead- what constituted an express war- ing Cases (9th Am. ed.) 329. Doubt- ranty. less the decision only involved the "Cross v. Gardner, [1689] 1 Show, sufficiency of the declaration, and if 68; s. c, sm6 nom. Crosse v. Gard- the declaration was inartificially ner, Carthew, 90; s. c, sub nom. drawn the court might have rested Cross r. Garnet, 3 Mod. 261. In this its decision on that ground, but it case the declaration alleged that the 248 FOBMATION OF THE CoNTEACT. ing the ensuing century in regard to the same question where the quality of goods was concerned, it is probable from the case^ about the beginning of the nineteenth century that an affirmation of quality inducing a sale had for some time been recognized as rendering the seller liable as a warrantor. The further step was also taken of allowing the action of assumpsit for the enforcement of a warranty. The first reported decision to this effect was in 1778.®^ ^A'hateve^ the form of action the requirements were the same, that is, the gist of the action was the afiirmation of the seller, irrespective of any fraudulent deceit on his part. Therefore, an action on the case for breach of warranty did not need to allege that the defendant knew that his afiirmation was false, and if such an allegation was made it did not have to be proved.*" The form defendant sold oxen to the plaintiff " and did falsely affirm them to be his own, whereas in truth they were the oxen of another man." After verdict, it was moved in the arrest of judgment the declaration was not good because the plaintiff had not alleged that the defendant laiew the oxen were not his own ; but, never- theless, the plaintiff had his judg- ment. It was said that it might have been good upon demurrer but after verdict was well enough, iladina v. Stoughton, [1700] 1 Ld. Baym. 593; s. c., 1 Salk. 210. In this case the plaintiff declared that the defendant being possessed of certain lottery tickets, sold them to the plaintiflF, affirming them to be his own, whereas in truth they A\ere not. The defend- ant pleaded that he bought them in good faith before the sale and so sold them in good faitli. The plain- tiff demurred, and Holt, C. J. said: " The plea is ill, and the action well lies. Where a man is in possession of a thing, which is a colour of title, an action will lie upon a bare affirm- ation that the goods sold are his own." How fa;r these decisions ad- vanced beyond the earlier law is not perfectly clear. Furnis v. Leicester, Cro. Jac. 474 ; Anon., 1 Eolle Abr. 90, 91, pi. 5-8 — but Lord Holt at least made clear what was doubtful before. "Stuart i\ Willcins, 1 Dougl. 18. Apparently the practice of declaring in assumpsit was fully recognized at the time of this decision, although judicial sanction had not pre^icJUsiy been given to it. BuUer, J., said; " This mode has been in use ever since I have known anything of prac- tice, and my brother Ashhurst re- members it much longer. There is no objection to it, in point of form, which could prevail even on a special demurrer. Promises are not all executory. Do not all our books make a distinction between promises executed and promises execirtory; — that in one you may traverse the consideration, in the other not? Be- cause another action would lie, it does not follow that this will not. It was determined in Slade's Case, that there may be different actions for the same injury. T., 44 Eliz. 4 Co. 92 b." '^Denison r. Ralphson, 1 Vent. 365, the second count which stated a war- rant}' that the goods sold were good and merchantable, and averred that Cojstditiojsis aitd Wabeantibs. 249 in W'Mch the afErmation was made became continually of less im- portance.^'* The English cases of the past century show that the form which the seller's affirmation took was not the essential mat- ter. Any express affirmation inducing the sale appears to have been enough.** the defendant delivered them bad and not merchantable, knowing them to be naught; the court observe that though the declaration be " knowing them to be naught,'' yet the knovt'l- edge need not be proved in evidence. In Williamson r. Allison, 2 East, 446, 450, Lord Ellenborough said-: " For if one man lull another into security as to the goodness of a commodity, by giving him a \Yarranty of it, it is the same thing whether or not the seller knew it at the time to be un- fit for sale: the warranty is the thing which deceives the buyer who relies on it, and is thereby put off his guard. Then if the warranty be the material averment, it is suflScient to prove that broken to establish the deceit: and the form of the action cannot vary the proof in that re- spect. The ancient method of de- claring was in tort on the warranty broken, and that was just going out of general practice when the case of Stuart V. Wilkins, 1 Dougl. 18, was discussed, because it was found more convenient to declare in as- sumpsit for the sake of adding the money counts. So general was the former method, that declarations in that form were familiar in every arrangement of precedents in tort. And the more modern practice of declaring, in assumpsit in these cases has not prevailed generally above forty years. No other proof was re- quired to sustain the former mode of declaring than the warranty itself and the breach of it. Here then the plaintiff will be equally entitled to recover in the tort upon the same proof, by striking out tie whole aver- ment of the scienter. The old doc- trine is not yet obsolete. See infra, § 197, note 89. ''In Yates v. Pym, 6 Taunt. 446, a description of bacon in a. sale-note as " prime singed," w,as held to be a warranty that it was prime singed. So in Bridge v. Wain, 1 Stark, 504, the goods sold were described in the invoice as " scarlet-cuttings." Held, a warranty that they answered the known mercantile description of scarlet-cuttings. " Jendwine v. Slade, 2 Esp. 572. In this case the question was whether selling pictures by a. catalogue in which the name of the artist was put opposite to each picture constituted a warranty by the seller that the' pictures in question were painted by the artist whose names were put opposite. Lord Kenyon held that it was impossible to make this a case of warranty, but he did not rely on the ground that there was no war- ranty in form, but rather on the ground that in view of the antiquity of the, pictures it could only be matter of opinion by whom they were painted, and this must have been understood. The artists, it may be added, by whom the pictures were supposed to have been painted, died j> little more than a hundred years before the time of the sale. Power v. Barham, 4 A. & E. 473, may be com- pared with the preceding case. FoTir 250 FOEMATION OF THE CoNTKACT. § 197. Nature of the obligation of warranty. — Much of the in- trinsic difiiculty and still more of the divergence of authority which characterize the law of warranty are due to an imperfect recognition of the nature of the obligation imposed by a warranty. pictures were sold by the following bill of sale: Mr. N. Power. Bought of J. Barham. May 14, 1832. Four pictures, Views in Venice, Canaletto £160 00 Settled by two pic- tures £50 00 And a bill at five months 110 00 £160 00 J. Barham. The jury found that this consti- tuted a warranty and the following instruction to the jury waa held to be correct: Whether the defendant had made a representation, as part of his contract, and the pictures were genuine, not using the name of Canal- etti as matter of description merely, or as an expression of opinion upon something as to which both parties were to exercise a judgment, but tak- ing upon himself to represent that the pictures were Canaletti's. It may be added that Canaletti died about seventy years before the sale in question in this case. In Budd v. Fairmener, 8 Bing. 48, a receipt for £10 " for a gray four -year old colt warranted sound " was held to give no warranty of age. Shepherd v. Kain, 5 B. & Aid. 240 an advertise- ment for the sale of a ship described her as " a copper-fastened vessel," adding, that the vessel was to be taken with all faults, without any al- lowance for any defects whatsoever, and it appeared that she was only partially copper-fastened : Held, that notwithstanding the words, " with all faults, etc.," the vendor was liable for the breach of the warranty. Free- man V. Baker, 2 Nev. & M. 446, this was an action on the case of an ad- vertisement of a. ship for sale which described her as copper-fastened, and afterward contained an enumeration of masts, etc., which was headed " Inventory." The contract for the sale of the ship referred to the " in- ventory." This reference was held to have the effect of entitling the vendee to consider the description in the advertisement as forming part of the contract, though it was shown to be usual to designate the whole advertisement by the name of " In- ventory," Wright r. Crookes, 1 Scott, 635, N. R., this was an ac- tion on the case; though there was a written contract for the sale of a vessel, the plaintiff was held at liberty to give in evidence verbal statements and declarations made by the defendant in regard to the ship before the written contract was entered into, to the effect that the frame was composed of English and African oak, in order to establish a warranty, Carter v. Crick, 4 H. & N. 412. This was an action on a, war- ranty that barley sold by the defend- ant to the plaintiff was " seed barley." The defendant's agent showed the plaintiff a sample of bar- ley which the agent said was seed barley and the plaintiff on examina- tion of it said it was a good sample of seed barley and agreed to buy it. The plaintiff afterward resold it as ■■ chevalier seed barley." The barley was not of this kind and the plaintiff was compelled to pay damages to the person to whom he had sold it and now sought to recoup these damages Conditions and Waeeanties. 251 As has been seen,®^ the action upon a warranty was in its origin a pure action of tort. There is no doubt that to-day the obligation of a warrantor is generally conceived of as contractual, and there can be no doubt also that a seller may expressly promise to be answerable for some alleged quality of the articles sold, or that if he makes such a promise for good consideration he enters into a contract. This, however, does not either upon authority or reason exhaust the possibilities of ex- press warranties. It should not be the law, and by the weight of modern authority,*^ it is not the law that a seller who by positive affirmation induces a buyer to enter into a bargain can escape from liability by denying that his affirmation was an offer to contract. A positive representation of fact is enough to render him liable. The distinction between warranty and representation which is important in some branches of the law is not appropriate here. The representation of fact which induces a bargain is a warranty.®^ As an actual agreement to contract is not essential the obligation of the seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contTact or a quasi-tort, because remedies appropriate to contract and also to tort are applicable. That this is the character of the seller's obligation was recognized by Blackstone,®* and that this point of view has been lost sight of by some courts is no doubt due to the fact that assumpsit became so generally the remedy for the enforcement of a warranty. But even at the present time an action of tort for warranty still lies from the defendant. The court held law presumes that every man has con- that there was no warranty, appar- tracted to perform; and, upon this ently because the plaintiff had as presumption, makes him answerable much knowledge of the matter as the to such persons, as .suffer by his non- defendant's agent and that the state- performance." Under the last class of ment of each that the barley was contracts " implied by reason and seed barley was a statement of opinion construction of law," Blackstone in- <3iily_ eludes a warranty: "Also, if he, that '" See supra, § 195. selleth any thing, doth upon the sale " See infra, § 201. warrant it to be good, the law an- " See cases cited, infra, § 201. nexes a tacit contract to this war- " Blackstone includes his treat- ranty, that if it be not so, he shall mcnt of warranty under the head of make compensation to the buyer ; else contracts which are implied by law. it is an injury to good faith, for " Which are such as reason and jus- which an action on the case will lie tice dictate, and which therefore the to recover damages " 2,52 FOBMA^TIOIT' OF THE CojI^TEACT. ij'respective of any fraud on the part of the seller or knowledge on his part that the representations constituting the warranty were untrue.^* § 198. Intent to warrant. — It was said by BuUer, J., in a case which did not involve the question of warranty:^" " It was rightly held by Holt, C. J., in the subsequent cases, and has been uni- formly adopted ever since that an affirmation at the time of a sale is a warranty provided it appears on evidence to have been "" Thia was so held in England ( =ee siipra, § 196) , and Avas so held by the Supreme Court of the United States in Shippcn v. Bowen, 122 U. S. 575, 7 S. Ct. 1283, 30 L. ed, 1172. The court said: " In 1 Chitt}''s Pleadings, l:i7, the author says, that case or assumpsit may be supported for a false warranty on the sale of goods, and that, ' in an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the declaration, nor, if charged, conld it be proved.' In Lassiter i. Ward, 11 Ired. L. 443, 444, PaiiBn, C. J., citing Stuart r. Wilkins, 1 Dougl. 18, and Williamson r. Alison, 2 East, 446, said: 'It was accordingly there held that the dec- laration miglit be in tort, without alleging a, scirntrr, and, if it be al- leged in addition to tlie warranty, that it need not be proved. Tlie doctrine of the case is, that, when there is a warranty, that is the gist of the action, and that it is only when there is no warr;>nty that a scicnier need lie alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort, as well as ex contractu, on false warranties.' And so in House v. Fort, 4 Blackf. 203, 295, it was said that ' the breach of an express warranty is of itself a valid ground of action whether the suit be founded on tort or on contract;' and that, 'in the action on tort, the forms of the dec- laration are, that the defendant falsely and fraudulently warranted; etc., but the words falsely and fraud- ulently, in such cases, are considered as only matters of form.' But as to the scienter, the court said, ' that is not necessary to be laid, when there is a warrant}', though the action be in tort; or, if the scienter be laid, in such n case, there is no necessity of proving it.' See also Hillman i'. Wilcox, 30 Maine, 170; Osgood v. Lewis, 2 Har. & G. 495, 520, LS Am. Dec. 317; Trice v. Cochran, S Grat. 442, 450, 56 Am. Dec. 151; Greshair> r. Postan, 2 C. & P. 540," To th( same effect are: Farrell v. llanhattan Jlarkct Co,, 198 Mass. 271, 84 X. E. 481; Erie Iron Works r. Barber, lOl! Pa. St. 125, 51 Am. Rep. 508; Placid r. Merrill, 14 R. I. 578, and Piche v. Robbing, 24 R, I. 325, 53 Atl. 92. See also "Watson i\ Jones, 41 Fla. 241. 25 So. 078, 681; Tyler r. Moody, 111 Ky. 191, 63 S. W. 433, 54 L. R. A. 417, 419. 98 Am. St. Rep. 406. »°PasIey r. Freeman, 3 T. R. 51. This was an action of deceit for a false and fraudulent statement by the defendant that a person to whom the plaintiff was about to deal was of good credit. It was held that a good cause of action was stated although the defendant did not benefit by his false representation. Conditions and Wakeanties. 253 so intended." *^ This statement in regard to tke necessity of intent to warrant seems to have no earlier foundation. Tke decisions of Holt, alluded to, say nothing about intent, and Elaekstone mentions no such requirement in his treatment of the subject.®^ In theory all that seems necessary is that the afBrma- tion should have been such as to lead a reasonable man to believe that a statement of fact was made to induce the bargain. Even in the formation of ordinary contracts the only intent, or assent to contract, necessary is that words or conduct shall justify the other party in assuming a particular meaning. Accordingly in England little stress seems to have been laid on the requirement of intent,®^ and in a recent case the doctrine was thus stated: " In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment. In the former ease it is a warranty, in the latter not." ^'^ If this is the true meaning of the requirement of intent, it would seem better to find less misleading language to express the idea. The distinction stated in the language just quoted is that between an affirmation of fact and a statement of opinion. What is to be regarded as an affirmation of fact and what a state- ment of opinion will be hereafter considered.''^ § 199. American law — -Pennsylvania. — What has been said furnishes sufficient introduction to a consideration of the modem law in America. Owing to the development of the subject it might be expected that the different jurisdictions in this country would hardly follow at the same pace the changes which have been traced in the English law, and such is indeed the case. Pennsylvania alone of the United States seems to have retained without substantial change the English law of three hundred "Pasley v. Freeman, 3 T. H. 51, 57. Sale (5th Eng. ed.), 659. The pas- ti 3 Comm. 164. sage has also the sanction of Ameri- " See, however, Stuoley v. Baily, can authority. Carleton v. Jenlcs, 80 1 H. &'c. 405. Fed. Rep. 937, 47 U. S. App. 734, "De Lassalle v. Guildford, [1901] 26 C. C. A. 265; Roberts v. Apple- 2 K. B. 215, 221. This statement gate, 153 111. 210, 38 N. E. 676. was borrowed from Benjamin on " Jnfra, § 202. 264 FOEMATION OF THE CoNTKACT. years ago on the subject of express warranty. This is due prob- ably to the strong bent given to the law by Chief Justice Gibson."* As shown by the quotations in the preceding note, the law of Pennsylvania requires that a warrantor shall intend to- promise; it is not enough that he intends to affirm. This rule is probably so thoroughly established that it can only be done away with by statute. A statute is the more necessary. § 200. Other American authorities requiring intent on the part of the seller. — Many American authorities, especially the older '" In Borrekins v. Bevan, 3 Rawle, 23, 42, 23 Am. Dec. 85, Chief Justice Gibson expresses regret that the ex- cellent rule of Chandelor v. Lopus, " has been swept away by a flood of innovation in England and some of our sister States." In JXcFarland v. Newman, 9 Watts, 55, 34 Am. Dec. 497, the action was assumpsit on an alleged warranty in the sale of a horse, and the court below charged the jury that " a positive averment, made by the defendant at the time of the contract, is a warranty; that it is a part or parcel, of the contract." This ruling was reversed in the Su- preme Court, Gibson, C. J., saying in his opinion: "As the cause goes back to another jury, it is proper to intimate the principle on which a correct decision of it must depend. Though, to constitute a warranty re- quires no particular form of words, the naked averment of a fact is neither a warranty of itself nor evi- dence of it. In connection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied, from the whole, that the vendor actually, and not constructively, consented to be bound for the truth of his rerpresen- tation. Should he have used expres- sions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had inten- tionally induced the vendee to treat on that basis ; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gra- tuitously relied on it; for not to have exacted a direct engagement, had he desired to buy on the vendor's judg- iment, must be accounted an ia- stance of folly. Testing the vendor's responsibility by these principles, justice will be done without driving him into the toils of an imaginary contract." To similar effect is Jackson f. Wetherill, 7 S. & R. 480 ; again in Wetherill i\ Xeilson, 20 Pa. St. 448, 59 Am. Dec. 741: "A bill of sale described the soda ash, which was the subject of the sale, as being of a, certain strength, and it was held no war- ranty." This still represents the law in Pennsylvania. In Holmes r. Ty- son, 147 Pa. St. 305, 23 Atl. j64, 15 L. E. A. 209, there was evidence of statements that a horse was kind, sound, and gentle. The court held that not only was this not a war- ranty, but that it was no evidence of a warranty. " There was the mere assertion of a fact." In McAllister r. Morgan, 29 Pa. Super. Ct. 476, the buyer asked the seller in regard to a horse. " Is he sound? " The seller re- plied, " Yes, he is sound." Where- upon the buyer bought the horse. The court again applied Chief Justice Gibson's rule " that the naked aver- ment of a fact is neither a warranty of itself or evidence of it." See Krauskopf v. Pennypack Yam Co., 26 Pa. Super. Ot. 506. Conditions and Warranties. 255 ones, require an intention to warrant on the part of the seller. By this reqiiirement, however is generally meant not what Chief Justice Gibson*^ required, an intent to contract or to agree to be bound, but rather, as in Eaigiand, an intent to make a statement as matter of fact rather than as matter of opinion. An examina- tion of these cases will disclose a growing tendency to regard a positive statement by the seller by way of description of the goods or in regard to them as a statement of fact, not opinion, and, consequently, a warranty.^^ " See supra, note 96. "Berman c. Woods, 38 Ark. 351, an order was given for a printing press based on representations in the seller's letters and catalogue of the size and capacity of the press. The press was sent but the buyer claimed it was not in accordance with the statements. The court held that as the press did not correspond in one material respect, the size of the form which it would print, with the rep- resentations made in correspondence, -escission for breach of warranty might have been made if the buyer had acted promptly. As to the rep- resentations, the nature of which is not stated, m regard to the merits of the press made by the sellers in their circular, the court held that they did not amount to warranties, saying: " They are the usual artifices of en- terprise and competition," and quot- ing 1 Parsons on Contracts, 588, to the effect that a purchaser " cannot rely upon all statements and asser- tions made by the maker in circulars concerning the article as a warranty that it will do what is stated." An intention to warrant is also said to be necessary in Hartin Commission Co. V. Pelt, 76 Ark. 177, 88 S. W. 929, In Barnett v. Stanton, 2 Ala. 181, the seller of clothing represented it to be '■ fresh, well made, and suit- able for the market." The court held that there was no warranty, saying: " No matter how positive the rep- resentation of the seller may be, it will be regarded as an expression oi his belief, or opinion, unless it was intended and received as a stipula- tion that the property was of the quality represented." In McCaa v. Elam Drug Co., 114 Ala. 74, 86, 21 So. 479, 62 Am. St. Rep. 88, the court said, however, " Every vendor, whether he be a dealer or not, is responsible for his representation or affirmation as to quality, which are more than expressions ot opinion and which are relied upon, and upon which the party purchasing has the right to rely," and, also : " The pur- chaser may have had no opportunity to examine the t-rticle, or if subject to examination and in fact examined, he may not possess the requisite in- formation to enable him to determine. In such a case, if the vendor affirms or represents thi quality of the goods, as a fact, he is bound by such repre- sentation or affirmation." It will be seen that in these statements noth- ing is said about the seller's inten- tion. In Polhemus i\ Heiman, 45 Cal. 573, 578, the court defined a warranty as follows: "Any affirmation made at the time of sale as to the quality or condition of the thing sold will be treated as. a warranty if it was so intended." In McLennan v. Ohmen, 256 iEoEMA-TIOISr OF THE CoNTEACT. § .201. Best modem authorities disregard the seller's imtenti — So far as the intent spoken of by courts is restricted to the mean- 75 Cal. 558, 17 Pac. 687, the court laid down the same rule, adding: " Whether it was so intended and the purchaser acted upon it are questions of fact for the jury.'' In Illinois several early cases laid stress upon the intention of the seller. In Ender V. Scott, 11 111. 35, an instruction to the jury that " if the defendant rep- resented in positive terms to the plaintiff before the exchange that the mare was sound, such positive asser- tion will amount to a warranty," was held to be erroneous because it was said that the plaintiff might not have intended the assertion as a proposition to warrant. Intention was also laid stress upon in Adams V. Johnson, 15 111. 345. In Hanson v. Basse, 45 111. 496, the court, though giving a definitio,i of warranty which included the requirements of inten- tion, held that in case of a sale by sample a representation that the bulk was as good as the sample necessarily amounted to a warranty. In Reed r. Hastings, 61 111. 266, 268, the court effectually limited its earlier deci- sions by holding that " the intention with which the representation is made is to be determined by the character of the representation made, and the object to be effected by it." The court further said, broadly: "When the representation is positive and re- lates to a matter of fact, it consti- tutes a warranty." " It surely can- not be the law that -a, vendor of a chattel is permitted to make any false statements of fact in relation to the article which he may choose to indulge in, thereby inducing the purchase, and not being accountable to the purchaser." The same test was applied in Kenner v. Harding, 85 111. 264, 28 Am. Rep. 615, and in Roberts v. Applegate, 153 HI. 210, 216, 38 N. E. 676. In Phillips v. Vermillion, 91 111. App. 133, how- ever, the court, without citing any cases, held that the question of in- tention was vital. In Indiana the court lays stress on intent. In House V. Fort, 4 Blaekf. 293, the court held that a statement that a horse was sound, made to induce the sale, was not, per se, a warranty. " It is of itself only a. representation. To give it the effect of a warrainty, there must be evidence to show that the parties intended it to have that effect." So in Jones v. Quick, 28 Ind. 125, it was held that the words must have been " intended and under- stood " as a, wanantj'. In Smith v. Borden, 160 Ind. 223, 228, 66 N. E. 681, the court does not«put the matter so strongly: "Any positive represen- tation, assertion, or affirmation, made by the seller during the pendency of the negotiations for the sale, not the mere expression of an opinion or be- lief, which fairly expresses the inten- tion of the seller to warrant the article or property sold to be what it is represented, will constitute an express warranty." See also Bow- man V. Clemmer, 50 Ind. 10. In Ransberger v. Ing, 55 Mo. App. 621, the court held : " ilere assertions of the quality or condition of a chattel at the time of a sale is not, as matter of law, a warranty, but is merely evidence thereof as it may tend to show the intention of the parties, which is a question for the jury." In Kircher r. Conrad, 9 Mont. 191, 23 Pac. 74, IS Am. St. Rep, 731, the court held tliat a statement made by a seller that certain wheat was " spring wheat," was not a warranty. The court relied on Shisler v. Baxter, Conditions and Waek^vnties. 257 ing of apparent intent to assert a fact, undoubtedly a real require- inent of the law of warranty is stated by the word ; but as the word "intent" naturally means rather the seller's actual intent than 109 Pa. St. 443, 58 Am. Rep. 738, and Lord v. Grow, 39 Pa. St. 88, 80 Am. Bee. 504, whicli do indeed sup- port the decision of the Montana court, but aa has been seen the law o£ Pennsylvania ia peculiar. Seixas V. Woods, 2 Gaines, 48, 2 Am. Dee, 215. In this case the seller adver- tised certain wood he had for sale as " brazilletto," and shov?ed to the plaintiff an invoice of the wood re- ceived from the person who had sold it to him, describing' the wood by that name. He also made out a bill of parcels to tlie plaintiflfs for the wood under that name. In fact, the wood was peaehum, but the defendant did .not know it. This was held no warranty because it did not appear hy the evidence that the aeller so in- tended. Again, in Swett v. Colgate, 20 Johns. 196, 11 Am. Dec. 286, the court held a description of certain goods by the seller as " barilla " did not amount to a warranty though they were such. Tlie law of New York, however, is no longer indicated by these cases. In Hawkins v. Pem- berton, 51 N. Y. 198, 10 Am. Rep. 595, Earl, J., says : " It is not triae, as sometimes stated, that the repre- sentation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a warranty. If the contract be in writing and it contains a clear warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares ; and so, if it be by parol, and the representation as to the character or quality of the article sold be positive, not mere matter of opinion or judgment, and the vendee understands it as a 17 warranty, and he relies upon it, and is induced by it, the vendor is bound by the warranty, no matter whether he intended it to be a warranty or not. He is responsible for the lan- guage he uses, and cannot escape liability by claiming that he did not intend to convey the impression whieh his language was calculated to pro- duce upon the mind of the vendee." iSee also Heath Dry Gas Co. v. Hurd, 124 N. Y. App. Div. 68, 108 N. Y. Supp. 410. In North Carolina early decisions laid stress on intent, and apparently by intent meant an intent to contract. Erwin v. Max- well, 3 Murph. 241, 9 Am. Dec. 602; Foggart v. Blackweller, 4 Ired. 238. But in ilcKinnon ('. Mcintosh, 98 N. C. 89, 92, 3 S. E. 840, the court said : " Tliat for misrepresentation the vendor is liable as on a warranty ' if such representation was intended not as a mere expression of an opinion but the positive assertion of a fact upon which the purchaser acts,' and this is a question for the jury." Compare Wrenn r. Morgan, N. C. , 61 S. E. 641. In Ver- mont the rule as to intention has been strictly applied until recently. In Enger v. Dawley, 62 Vt. 164, 19 Atl. 478, an instruction was re- quested that if a catalogue was used by the parties and referred to by them in completing the sale, and the defendant relied on statements therein and believed them to be true, they were, in legal effect, warranties. The court held the instruction cor- rectly refused, saying : " To consti- tute a representation a warranty it must have been so intended and understood by the parties, both vendor and vendee. Beeman v. Buck, 258 PORJIATION OF THE CoNTEACT. the justifiable belief of the buyer, and as intent to warrant seems to mean intent to promise or enter into a contract quite as naturally as intent to assert a fact, it is much better to avoid the 3 Vt. 53, 21 Am. Deo. 571; Foster v. Caldwell's Estate, 18 Vt. 176; Bond V. Clark, 35 Vt. 577; Houghton v. Carpenter, 40 Vt. 588; Pennock v. Stygles, 54 Vt. 226; or, intended by the parties as a part of the contract; Richardson v. Grandy, 49 Vt. 22; or, have formed the basis of the contract; Seals r. Olmstead, 24 Vt. 114, 68 Am. Dec. 150; Drew c. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122." In Hobart v. Young, 63 Vt. 363, 369, 21 Atl. 612, 12 L. R. A. 693, however, the court modified its pre- vious position, saying: "Any affirma- tion as to the kind or quality of the thing sold, not uttered as matter of commendation, opinion, nor belief, made by the seller pending the treaty of sale, for the purpose of assuring the purchaser of the truth of the af- firmation and of inducing him to make the purchase, if so received and relied upon by the purchaser, is deemed to be an express warranty. And in case of oral contracts, it is the province of the jury to decide, in view of all the circumstances attend- ing the transaction, whether such a, warranty exists or not." In Mason V. Chappell, 15 Gratt. 572, 583, the court said: "No affirmation, however strong, will constitute a warranty un- less it was so intended. If it is in- tended as a Avarranty the vendor is liable, if it turns out to be false, however honest he may have been in making it; but if it is intended as an expression of opinion merely, or as simple praise or commendation of the article, he is not liable unless it can be shown that he knew at the time that it was untrue." In later Virginia cases, however, less stress is laid upon intent. In Herron v. Dibrell, 87 Va. 289, 12 S. E. 674, the court held that statements made in regard to tobacco that it was " sound " and " redried " and in " good keeping order," amounted to a warranty. The court quoted with ap- proval : " The general rule is that whatever a person represents at the time of the sale is a warranty." See also Milburn Wagon Co. c. Nise- warner, 90 Va. 714, 19 S. E. 846. In Giffert v. West, 33 Wis. 617, the court held : " That an affirmation made by the vendor at the time of the sale amounts to an express war- ranty, if it appears on the facts stated or proven to have been so in- tended and received." In Hoffman v. Dixon, 105 Wis. 315, 81 N. VV. 491, 76 Am. St. Rep. 916, however, the court held: "An affirmation of the fact as to the kind or quality of an article offered for sale of which the vendee is ignorant but on which he relies in purchasing such article is as much a binding contract of war- ranty as a formal agreement using the plainest and most equivocal lan- guage on the subject." " The better class of cases hold that a positive affirmation of n material fact as a fact, intended to be relied upon as such and which is so relied upon, constitutes in law a, warranty, whether the vendor mentally intended to warrant or not. The latter is the doctrine of this court, as indicated by numerous cases where it has been ap- plied." To similar effect is J. H. Clark Co. i'. Rice, 127 Wis. 451, 106 N. W. 231. See also Bagley v. Cleve- land Rolling Mill Co., 21 Fed. Rep. 159; Unland v. Garton, 48 Neb. 202, 66 N. W. 1130; Cole v. Carter, 22 Tex. Civ. App. 457, 54 S. W. 914. Conditions and Waeeanties. 259 use of the word in this connection altogether, and the best modem authorities have reached this result.®^ " This is shown by quotations in the note to the preceding section taken from late decisions of the courts of Alabama, Illinois, New York, Ver- mont, Virginia, and Wisconsin. It is also stated in recent cases in other jurisdictions. McCliutock v. Emick, 87 Ky. 160, 7 S. W. 903. In reply to a question the seller of mules said they were " all right." The plain- tiff's petition averred that the de- fendant merely " represented " the mules were all right. It was held the petition sufficiently stated a cause of action •and the evidence justi- fied recovery. The court said : " Some of the cases, however, seem to make the existence of a warranty depend upon the intention of the vendor ; and it is urged in this case that the petition is defective in failing to aver that the appellant expected or intended the appellee to rely upon his representation in making the purchase. If the true construction of this class of cases is that the decision did not turn upon whether the party intended to be held by a warranty, but whether he intended to affirm a, fact or merely express an opinion, then they are reconcilable with the cases which, in our opinion, correctly hold that if one even sup- poses that he is not making himself liable upon a, warranty, yet if he makes a positive affirmation as to the condition of the property, or utters what is equivalent to a promise as to it, instead of express- ing a belief merely, then such affirm- ation or promise amounts to a war- ranty, and he is liable upon it. It does not depend upon whether the vendor intends to be bound by his warranty or not, but upon whether he made an affirmation as to the con- dition of the article or merely ex- pressed an opinion as to it." In Ormsby v. Budd, 72 Iowa, 80, 33 N. W. 457, the court held representa- tions amounted to a warranty, and said nothing in regard to the seller's intent. In Stroud c. Pierce, 6 Allen, 413, 416, the court said: "The de- fendant contends that it should have been left to the jury to find whether this language was used with the in- tent of affirming the fact or of ex- pressing an opinion, but the intent of the party is immaterial." So in Ingraham i\ Union R. R. Co., 19 R. I. 356, 33 Atl. 875, a. public announce- ment at an auction sale " that all horses about to be offered had been driven single, and that all horses which were not kind and safe to drive single would be specified at the time they were sold," was held to amount to a warranty that all horses then sold were kind and safe to drive singly unless the contrary were stated, and the court said : " Nor is it true, as sometipies stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a warranty. For if the representation as to the character or quality of the article sold be positive, and not mere matter of opinion, and the vendee understands it and relies upon it as a warranty, the vendor is bound thereby, no matter whether he in- tended it to be a, warranty or not." See also Shippen r. Bowen, 122 U. S. 575, 30 L. ed. 1172; Accumu- lator Co. V. Dubuque St. Ry. Co., 64 Fed. Rep. 70, 77, 27 U. S. App. 364, 12 C. C. A. 37; Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; Conkllng 2CiO ITOEMATIOIS' OF THE CoJS'TP^ACT. § 2.02. Bistinotion between affirmation of fact and, opinion. — It is not easy to draw the liiifi accurately between afnrraatiori of fact on tile one hand and statements of opinion on the other. Several distinctions may be noticed. In the first place it seems obvious that any statement may be put in the form of a statement of opinion. If the seller says a horse is sound, he affirms a fact ; but when he states that he believes him to be sound, the only fact which he asserts is his belief, and if he does in fact believe the horse to be sound, he could not be held liable if the horse were not sound. Again there are some matters which, even though asserted positively, are in their nature so dependent on individual opinion that no matter how positive the seller's assertion it is not held to create a warranty. Such assertions as that things are fine or valuable, or better than productions of rival makers, are of this sort.. It should be noticed, however, that the continual tendency of the law is to restrict the seller in regard to untruth- ful puffing of his wares. A further test has been suggested; namely, that if the statement is in regard to something of which the buyer is ignorant and relies upon the seller for information, a statement of the seller would be a warranty; but if the matter was one in regard to which the buyer had as good opportunity for forming an accurate judgment and was as competent to pass such a judgment as the seller, the statement will be matter of opinion. This test does not seem conclusive, however. Though a buyer has the opportunity and the skill to pass judgment upon goods, he may be induced not to do so by positive statements of the seller. If such statements are made for the purpose of induc- ing a sale and do induce it, there seems no reason why the seller should not be liable. In any event the test last suggested con- ceims rather the buyer's reliance on the assertion than the char- )'. Standard Oil Co., Iowa, , 4011, 20 Am. Ttep. 425; Fairbank 116 N. W. S22 ; liarrigan v. Advance Canning Co. r. iletzger, 118 N. Y. Tliresher Co., 26 Ky. L. Eep. 317, 260, 23 X. E. 372, 16 Am. St. Eep. 81 S. W. 261; Creenshaw i'. Slj-e, 7.5.'? ; Wrenn r. r^Iorgan, N. C. , 52 Jra. 140; Potomac Steamboat Co. 61 S. E. 641; Northwestern Lumber r. Harlan, etc., Co., 66 ild. 42, 4 Co. r. Callendar, 36 Wa?li. 492; 498, Atl. 903; J. I. Ca=e Machine Co. !'. 79 Pao. 30; Huntington v. Lombard, Jlclvinnnn, 82 ilinn. 75, 84 N. W. 22 Wasli. 202, 60 Pac. 414; Camp- 646'; Wolcott V. Mount, 36 N. J. L bell v. Smith, 13 Vict. L. Rep. 439. 262, iFAmT^ep. 438, 38 N. J. L. Conditions and Waeeanties. 261 a-cter of the assertion itself, and the question should be dealt with under reliance. A more -detailed consideration of authori- ties may now be given. § 203. Contrasting decisions of statements of fact and of opinion. — Since the distinction between what are statements of fact and what are expressions of opinion involves a discrimination be- tween expressions which gradually shade from one to the other, the best way of indicating where the line between the two is to be drawn is by stating a number of decisions on each side. It is to be noticed that the same sort of question that is involved in the law of warranty is also to be observed in actions of tort for deceit and in proceedings to rescind a transaction on aeeount of fraud.-' "While it cannot be asserted that any statement which is too largely mere matter of opinion to amount to a warranty may not, at least if fraudulently made, be ground for an action for deceit or proceedings for rescission of a bargain, the converse statement may be made, that is, if a statement falsely and fraiidu- lently made will not sustain an action of deceit or afford groimd for rescinding a contract, it is still more clear that it cannot amount to a warranty.^ •■As to these, see infra, §' 628. 128 Ga. 501, a Btatement that -eloth- ' In the following cases relief was iag to be delivered sliall be of as allowed: Saiaerman v. Simmons, 74 good quality as some sUown the Ark. 563, 86 S. W. 429, an action b-uyer, held a warj?ainty.. In French of rescission for breach of warranty. r. Hardin County Canning Co., 67 Held a question for jury whether 111. App. 269, the seller wrote " under- representations as to a pump " that stand we quote you only on cans that it would lift water thirty-five feet on are well made, tested, and in every a straight lift " amounted to a war- way satisfactory for your work." ranty. Mason v. Thornton, 74 Ark. This was held to create a warranty 46, 84 S. W. 1048, an agreement that that cans bought thereafter were the price of the goods sold should be first class in every particular. For- determined by the cost marks upon cheimer v. Stewart, 65 Iowa, 593, theni was held to involve a state- 22 N. W. 886, 54 Am. Eep. 30, a, ment by the seller that the marks description of hams as " choice sugar- purporting to indicate the cost did cured canvassed hams " was held a so in fact, and that tort for deceit statement of fact. Latha^i v. Ship- would lie if the seller knew the ley, 86 Iowa, 543, 53 N. W. 342, marks to be inaccurate. Burge v. statements were made in a catalogue Stroberg, 42 Gfa. 88, a statement that in regard to a machine that it was in a horse was fourteen years old, held " first class order " and in letters a warranty. Christian v. Knight, that " it will certainly do your 202 EOBMATION OF THE CoNTEAOT. The question wbetlier a statement by the seller of an animal that it was sound is or may be a matter of opinion is one that work," the buyer liad not seen the machine and relied on tlie seller's statements. Held the seller was liable in damages for breach of war- ranty. Stevens /■. Bradley, 89 Iowa, 174, 50 N. W. 429, the owner of hogs at an auction sale announced that tliey were as "thrifty a lot as he had ever owned, and that he had been in the hog business a good many years." Held ii. warranty of sound- ness. Conkling i. Standard Oil t-'o. (Iowa), 116 N. W. 822. A seller of oil represented that it was non- intlammablc ami safe and fit to use as a cooling medium for gasoline en- gines. Held u, warranty. Ilarrigan V. Advance Thresher Co., 26 Ky. L. Rep. 317, 81 S. \V. HW, statements in regard to a second-liand engine that it was '' all right, in good condition," and "could do the work of any good twelve hor.se-pdwer engine "' if untrue, justified recoupment in an action for the price. McClintock r. Emick, 87 Ky. 160, 7 S. W. 90ri. a statement pending a bargain that mules were " all right " amounts to a warranty of soundness. Bryant v. Crosby, 40 "Me. 9, the statement that " sheep are young and healthy " is a statement of fact. ]\forse r. Moore, 83 ^h\ 473, 22 Atl. .'!r,2. 13 L. B. A. 224, 23 Am. St. Rep. 783, " good clear merchantable ice not less than twelve inches in thickness." These words were part of the seller's promise in a written contract and were held to amount to a warranty. .T. I. Case Co. !'. Mc- Kinnon, 82 I\Tlnn. 75, 84 N. W. 646, an assurance that an engine had " ample power " to run a separator was held to render the seller liable as a warrantor. Branson v. Turner, 77 Mo. 489, the seller wrote the buver that he had a fine steer for R.ale, that the steer had u, sore under liis neck, " but that don't hurt him, it is most well." The buyer replied, " if your cattle are as good as repre- sented you can deliver them." The steer was tliereupon sent with others. It was held this amounted to a war- ranty. Burr i\ Iledbead, 52 Neh. 617, 72 N. W. 1058, a statement that bicycles were to be of " good mate- rials " and of the " highest possible grade " were held statements of fact. Lederer i\ Yule, 67 N. J. Eq. G5, 57 Atl. 309, a representation that a pat- ented burglar alarm could be made as good as a sample 'for a specified price, was held ground for rescission for fraud. Tliis necessarily involved a decision that the representation was as to matter of fact rather than opinion. Phillips r. Crosliy, 70 N. J. L. 785, 55 Atl. 814, representa- tions by the seller of oil stock, as to the lands owned by the company, the number of oil wells upon the lands and tlieir productiveness, it was held should 'be submitted to the jury to find whether there was a warranty. Money i-. Fisher, 92 llun, 347, on purchase of a bull the buyer asked is he " fat and all riglit,'' and said he would puri'liase on that condition. The seller answered "yes." This was held a. warranty. Titus r. Poole, 145 N. Y. 414, 40 K. E. 22S, on selling bank stock the seller stated that the bank was organized under th" laws of Pennsylvania, that the stock was worth 100 cents on the dollar, and that it was good high divi- dend paying stock. It was held the seller was li.able for these statements as upon a warranty that the stock was worth par, and that tlie bank was organized as represented. May V. Loomis, 140 N. C. 350, 52 S. E. Conditions and Warranties. 263 has been mucli litigated. In the older cases the tendency was to hold that such a statement might be matter of opinion, although 728, statements fraudulently made by the sellers of timber that they had had it carefully estimated, and that the estimate showed a specified quan- tity, are statements of fact, and en- title the buyer to a. counterclaim when sued for the price. Reese v. Bates, 94 Va. 321, 26 S. E. 865, a statement that guano was " as good as any in the market " is a state- ment of fact. Northwestern Lumber Co. V. Callendar, 36 Wash. 492, 79 Pac. 30, representations by the seller for machinery to make boxes, as to the worth of the machinery and the boxes made by it, were held war- ranties, justifying a finding for the huyer in an action for the balance of the price. Winkler v. Patten, 57 Wis. 405, 15 N. W. 380, statements that goods were " good bagging and gunnies " and were " far superior to any Chicago and Milwaukee pack- ings," and were " worth two and one-half cents per pound " amounted to a warranty, justifying the buyer in counterclaiming in an action for the price. Milwaukee Machine Co. v. Hamacek, 115 Wis. 422, 91 N. W. 1010, the seller's statement that an engine was " as good as new in every particular " is an assertion of fact. See also Lamme V. Gregg, 1 Mete. (Ky.) 444, 71 Am. Dee. 489; Dickens v. Williams, 2 B. Mon. 374; Young v. Van Natta, 113 Mo. App. 550, 88 S. W. 128 ; Love v. Miller, 104 N. C. 582, 10 S. E. 685; Eeiger v. Worth, 130 N. C. 268, 41 S. E. 377, 89 Am. .St. Rep. 865; Beasley v. Surles, 140 N. C. 605, 53 S. E. 360. In the following cases relief was denied: Chalmers v. Harding, 17 L. T. (N. S.) 571, a statement in regard to a reaping machine that it would " cut wheat, barley, etc., efficiently," held no warranty. Brawley v. United States, 96 U. S. 168, 24 L. ed. 622, a contract for the sale of an entire lot of goods, naming the quantity, with the addition of the words " more or less." It was held that the representation as to quantity was merely an estimate of opinion. Schroeder v. Trubee, 35 Fed. Rep. 652, » statement by the seller, made in good faith of stock, that dividends which had been declared had been earned, and that the stock account was " all right," held to be no war- ranty. Sleeper v. Wood, 60 Fed. Rep. 888, 21 U. S. App. 127, 9 C. C. A. 289, a statement that canned corn was of the " best packing of 1888," accompanied with " usual guaranty against swells," was matter of opinion. Crosby v. Emerson, 142 Fed. Rep. 713, 74 C. C. A. 45, a. statement by the seller of mining stock in regard to the value of the property, with prophesies as to the prospects of the company, held no defense to an action for the price. Farrow v. Andrews, 69 Ala. 96, a representation by a seller of guano that it was » good fertilizer, held no warranty. Shiretzki v. ICessler (Ala.), 37 So. 422, a statement that certain whiskey would meet the wants of the buyer's trade, held no defense to an action for the price. Bain v. Withey, 107 Ala. 223, 18 So. 217, a statement that a patented article was " a valuable and useful improve- ment," held a mere expression of opinion, and no defense for an action for the price. Baldwin v. Daniel, 69 Ga. 782, a representation that a plow would " sell well in Mississippi," held a statement of opinion, and no defense to an action for the price. 264 FOEMATION" OF THE CoWTEACT. not 60 necessarily.^ The modem and better view is ttat suci a statement positively made in such a way as to form part of the Navassa Co. r. Commercial Co., 93 Ga. 92, 18 6. E. 1000, a sale of specific pile of guano, " estimated " to contain 253i<,, tons, was agreed iipon. The purchaser was held bound to take the entire pile, though it con- tained 702 7-10 tons. Towell v. Gate- wood, 3 111. 22, 33 Am. Dec. 437, statement in a hill of sale describiug tobacco as " good first and second rate tobacco," held a statement of opinion. Barrie v. Jerome, 112 111. App. 329, statements by a seller of Balzac's works, that they were " nice books," " books that children would love to read," were statements of opinion merely, and no defense to an action for the price. Jackson r. Jlott, 76 Iowa, 263, 41 N. W. 12, a statement of the age of a horse was held erroneously ruled as warranty as matter of law. The question should have been submitted to the jury. Shambaugh v. Current, 111 Iowa, 121, 82 N. W. 497, and Burnett !'. Hens- ley, 118 Iowa, .'57.5, 92 N. W. 678, a description of animals as " thorough- bred," held not a statement of fact. Gaar v. Halverson, 128 Iowa, 603, 105 N. W. 108, statements that an engine was " practically as good as new," and was of sufficient power to drive the defendant's machinery, held ex- pressions of opinion, and no defense to an action for the price. Bryant r. Cvosliy, 40 !Mp. 0, a statement that " sheep would shear from three to five pounds of wool per head, and that the buyer could pay for the sheep by the wool from the sheep in tAvo years, and have wool left," a statement of opinion. Rice v. Cod- man, 1 Allen, 377, bill of sale of gunny cloth which specified the weight as " per foreign invoice " was held not a warranty that the actual weight corresponds w-ith the invoice weight, and the seller was not liable in damages. Deming v. Darling, 148 JIass. 504, 20 N. E. 107, 2 L. E. A. 473, a statement that a bond was " an Al bond " was held a matter of opinion, not making the seUer liable for fraudulent representations. In Morley i\ Consolidated Mfg. Co. (Mass.), 81 N. E. 993, the plaintiff bought a second-hand automobile for about one-half the price of a new car. He used it several months when the crank shaft broke and damaged the engine materially. The agent who sold the machine to the plaintiff said at the time of the sale " that the machine iad been used as a demonstrating car, and had been run about 500 miles ; that it was in first- class condition and all right." The trial court ordered a Terdiet for the defendant, which was upheld, the court saying: "There was no ex- press warranty, all that Head said as to the value and nature of the machine was mere sellers' talk." Worth V. McConnell, 42 Mich. 473, 4 N. W. 198, a, statement that a threshing machine " is a very good machine and will do very nice work," held not a warranty and no defense to an action for the price. Linn i . Gunn, 56 Mich. 447, 23 X. W. 84, the seller of a stock of goods repre- sented that the stock equalled in cost an amo^mt .shown by an inventory less an amount shown in his books as received from sales. The seller was held not liable. His statements were made in good faith and the purchaser was experienced. Matlock v. Meyers, 64 Mo. 531, statement in regard to a mare that she is a ■" good mare." held not a warranty of soundness, and not to malting the seller liable Conditions and Wakbanties. 265 inducement of a sale is necessarily a -warranty.* . Another class of cases that deserves special notice is that relating to statements of value. Such statements are generally expressions of opinion. The question more often arises in attempts to hold the seller for fraudulent conduct and the cases are referred to in that con- fer a defect in her eyes. BartJett v. Hoppock, 34 K. Y. 118, 68 Am. Dec. 427, a statement in regard to cattle by an Ohio drover to a New York city stock buyer in regard to hogs that they were " suitable and proper for the New York market " was held matter of opinion. The hogs were open to inspection and the court said : " The purchaser had much the better opportunity of knowledge, and were it otherwise it would not constitute a warranty in law." There was, therefore, no defense to an action for the price. Stumpp v. Lynber, 84 N. Y. Suppl. 912, ix statement that roses offered for sale " were very fine stock,'' held not a warranty, and no defense to an action for the price. Cash Register Co. v. Townsend Grocery Store, 137 N. C. 652, 50 S. E. 306, statements that a cash register "would do away with a bookkeeper," " that the books could be kept on the machine,'' " that the machine could be operated by a person of ordinary intelligence," held to be statements of opinion, and no defense to an ac- tion for the price. Osborne v. Mc- Coy, 107 N. C. 726, 12 S. E. 383, a statement by the seller "ihat a horse was sound as far as he knew," hon- estly made, held no warranty. Wor- rell V. Kinnear Mfg. Co., 103 Va. 719, 49 S. E. 988, a, statement that a bid was as low as work in question could be done for, and that there was no profit at tliat price, held ex- pressions of opinion, which did not justify rescission by the purchaser. Baker v. Henderson, 24 Wis. 509, a statement that " trees had not been injured by exposure to the weather,'' held no warranty and no defense to an action for the price. Elkins v. Kenyon, 34 Wis. 93, a statement of an agricultural machine that it would work " in all kinds of hay, grain, straw, and other grass," held no war- ranty. See also Tabor v. Peters, 74 Ala. 90, 49 Am. Kep. 804; Engle- hardt v. Clanton, 83 Ala. 330, 3 So. 680; Collins v. Tigner, 5 Del. 345, 60 Atl. 978; Roberts i,'. Applegate, 153 111. 210, 38 N. E. 676; Lynch v. Murphy, 171 Mass. 307, 50 N. E. 623 ; Bates County Bank v. Anderson, 85 Mo. App. 351 ; Anthony v. Potts, 63 Mo. App. 517; Walsh v. Hall, 66 N. C. 233; Oneal v. Weisman (Tex. Civ. App.), 88 S. W. 290; Tenney v. Cowles, 67 Wis. 594, 31 N. W. 221. = See Tyre r. Causey, 4 Har. (Del.) 425; Hawkins v. Berry, 10 111. 36: House V. Fort, 4 Blaclcf. 293; Bairi •v.. Matthews, 6 X)ana, 129; Hazard v. Irwin, 18 Pick. 95; Whitney r. Sut- ton, 10 Wend. 411; Erwin v. Max- well, 3 Murph. 241, 9 Am. Dec. 602; Inge V. Bond, 3 Hawks, 101. In Penn- sylvania the court has gone still fur- ther and held such a statement no evidence of a warranty. See supra, § 199. •Riddle r. Webb, 110 Ala. 599, 18 So. 323; Cummins v. Ennis, 4 Del. 424, 56 Atl. 377; Joy v. Bitzer, 77 Iowa, 73, 41 N. W. 575, 3 L. R. A. 184; McClintock v. Emick, 87 Ky. 160, 7 S. W. 903; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693. 266 FOBMATION OF THE CoNTEACT. nection.® A statement of facts upon which value depends is, however, an aifirmation of fact. Therefore, a statement of the cost of property or of offers received for it should be beyond the line allowed for seller's puffing.'* § 204. Liability for erroneous statement of opinion. — Even though a statement is of such a character that it would be re- garded merely as an expression of opinion, under ordinary cir- cumstances, there may be cases where a seller is subject to an ex- traordinary duty. Thus, the seller may expressly warrant the correctness of his opinion.'^ So where statements are made by one occupying the position of a fiduciary or an expert, expressions which might not render a person of a different character liable will be actionable. This is well settled in the law governing ac- tions of tort for deceit,* and there seems no reason to doubt that in the law of warranty the same distinction should be taken. A third class of cases which may be suggested consists of cases where the seller's expression of opinion is made with knowledge of its falsity. But whether a knowingly false statement of the seller's opinion may ever afford ground for an action of deceit, because of the seller's fraud, on the ground that a statement by the seller of what he believes is in itself a statement of his own mental at- titude, which he should have no right fraudulently to misrep- " See infra, § 628. ranted " it " to do as good ■work as " See infra, § 628. See also Phillips any other separator of its size in the r. Crosby, 70 N". J. L. 785, 55 Atl. United States." In Hazelton Boiler 814, stated, siijira, note 2; Titus v. Co. i. Fargo Gas Co., 4 X. Dak. 365, Poole, 145 N. Y. 414, 40 N. E. 228; 61 X. W. 151, the sellers said "we also stated in note 2 ; Oneal r. Weis- guarantee " that the boiler, which man (Tex. Civ. App.), 88 S. W. 290. was the subject-matter of the sale, ' Aultman v. Weber, 28 111. App. " will make a saving of at least 20 per 91, the seller of a machine "war- cent, in fuel as compared with any ranted " that it would do as good other horizontal boiler." This was held work as any other in the market. an actionable warranty. See also Mc- This was held actionable. Had the Cormick Harvesting Machine Co. v. buyer merely made a statement to Brower, 88 Iowa, 607, 55 X. W. 537. this efTect in the course of the nego- See also Iroquois Furnace Co. v. tiations, it may, perhaps, be doubted Wilkin Mfg. Co., 181 111. 5S2, 54 whether the court would have reached N. E. 987. the same result. So in Briggs v. '2 Cooley, Torts (3d ed.), 925. Rumely Co., 96 Iowa, 202, 64 N. W. See also infra, § 628. 784, the seller of a machine "war- Conditions and Waeeanties. 267 resent, knowledge of the incorrectness of his opinion seems to im- pose no liability on the ground of warranty.^ § 205. Description of the goods. — It was held in an early English case/** where the seller gave the following receipt " received of [the buyer] 10 pounds for a gray, 4yr. old colt, warranted sound in every respect," that there was no warranty of the colt's age, the words being mere description. It is obvious that the seller's promise to warrant in this case related only to soundness, but that should give him no right to make positive untruthful as- sertions in regard to matters not included in the promises, the de- cision seems, therefore, erroneous.-*^ If the statement "warranted ' Deming v. Darling, 148 Mass. 504, 20 N. E. 107, 2 L. R. A. 743, this was an action for fraudulently in- ducing the plaintiff to purchase a bond by representing that it was an Al bond, and that the mort- gaged railroad was good security for it. Holmes, J., in delivering the opinion of the court said : " The lan- guage of some cases certainly seems to suggest that bad faith might make a seller liable for what are known as seller's statements, apart from any other conduct by which the buyer is fraudulently induced to forbear in- quiries. Pike V. Fay, 101 Mass. 134. But this is a mistake. It is settled that the law does not exact good faith from a seller in those vague commendations of his wares which manifestly are open to difference of opinion, which do not imply untrue assertions concerning matters of direct observation (Teague v. Irwin, 127 Mass. 217), and as to which it always has been " understood, the world over, that such statements are to be distrusted." Brown v. Castles, 11 Cush. 348, 350; Gordon v. Par- melee, 2 Allen, 212; Parker v. Moul- ton, 114 Mass. 99, 19 Am. Rep. 315; Poland V. Brownell, 131 Mass. 138, 142, 41 Am. Rep. 215 ; Burns v. Lane, 138 Mass. 350, 356. Parker v. Moul- ton also shows that the rule is not changed by the mere fact that the property is at a distance, and is not seen by the buyer. Moreover, in this case, market prices at least were easily accessible to the plaintiff." It may safely be assumed that the court would have been at least equally clear that the language complained of did not amount to a warranty. In Os- borne V. McCoy, 107 N. C. 726, 730, 12 S. E. 383, the court said of a statement of opinion : " If knowingly false, it might have been cause for an action of deceit, but it was no warranty." In regard to the liability of the maker of such a statement for deceit rather than warranty, the rea- soning upon which a promise made with intent not to keep it has been held fraudulent may be considered. See infra, § 630. "Budd V. Fairmaner, 8 Bing. 48. '' To the same effect is Richard- son V. Brown, 1 Bing. 344. These decisions were followed in Willard v. Stevens, 24 N. H. 271, where the memor'andum wn s as follows : " Bought one red horse, six years old for $125, which I warrant sound and kind," and in Anthony v. Halstead, 37 L. T. (N. S.) 433. See infra. § 213. 268 FOEMATION OF THE GoNTEACT. sotmd in every respect " had been omitted, the decisions presently to be referred to sufficiently show that the statement of age or any other descriptive statement would be a warranty. The addition of the warranty of soundness was undoubtedly for the purpose of giving the buyer an additional right, not for the purpose of re- stricting the seller's liability, and should not affect the question.-'^ Occasionally decisions still refer to " matter of description," or " descriptive stattnients " as if those terms were inconsistent with a warranty.-** Xo doiibt there is a distinction between matter of description, and collateral warranties in regard to the question whether the promise of a seller is an integral part of a single con- tract or is a collateral bargain, if that question is important, as it is held to be in some States in determining whether a promise in a contract to sell is a warranty which survives acceptaneeof the goods, a question hereafter considered." But the cases here criticised seem to hold that matter of description imposes no obligation what- ever on the seller. The law, however, is now convincingly settled that descriptive statements do constitute a warranty, whether the sel- ler makes them or whether the buyer in ordering goods makes them and the seller furnishes goods in response to such order.^^ Doubt- less a description of goods by the seller does not necessarily imply " See infra, § 213. last lot" of steel) ; Flint v. Lyon, 4 "In Shambaugh v. Current, 111 Gal. 17 (" Haxall'' flour) ; Miller f. Iowa, 121, 82 N. W. 407, a deaerip- Moore, 83 Ga. GS4, 10 S. E. 360, 6 tion of cattle in a written contract L. E. A. 374, 20 Am. St. Eep. 329 as " thorougbbred " was held not to ("No. 2 wliite mixed corn"); constitute a warra«ty on the grounds Americus Grocery Co. v. Brackett, that the word was merely descriptive. 119 Ga. 489, 46 S. E. 657 ("Texas The case was followed in Burnett v. red rust-proof seed oats") ; Hender- Hensley, 118 Iowa, .575. 92 N. W. son Elevator Co. v. North (Georgia 678. ,«oe also Carondelet Iron Works Milling Co., 126 Ga. 279, 55 S. E. r. Moore, 78 111. 65; Baird v. Mat- 50; De Loach Mfg. Co. r. Tutweiler thews, 6 Dana, 133; Staiger v. Soht, Coal Co., 2 Ga. App. 493, 58 S. E. 116 N. Y. App. Biv. 874, 102 N. Y. 790 ("Standai-d Alabama No. 1 soft Suppl. 342; affd., 191 N. Y. 527, 84 and Alabama foundry No. 2 pig N. E. 1120; Brown 17. Baird, 5 Okla. irwn"); Foss v. Sabin, 84 111. 564 133, 48 Pac. ISO. ("fat cattle") ; Telluride Power Co. " Infra, § 489. r. Crane Co., 103 111. App. 647 ; Ault- "Josling V. Kiwgsford, 13 C. B. man-Xaylor Co. r. Eidenour, 96 Iowa, (N. R.) 447 ("oxalic acid") ; Allan 638, 65 N. W. 980 (order for "twelve V. Lake, 18 Q. B. 560 (turnip seeds dangee horse-power"); Morse *'• were sold as " Skiving's Swedes") ; Moore, 83 Me. 473, 22 Atl. 362, 13 Bagley r. Cleveland Rolling Mill Co., L. R. A. 224, 23 Am. St. Eep. 733 21 Fed. Rep. 159 ("same quality as ("good clear merchantable ice, not Conditions anik Warea-nties. 269 that tlie description is literally true, and if a reasonable person would not draw that inference from the description there can he no warranty that the description is literally true. In a Massa- chusetts case/'^ the sellers manufactured chains known in the mar- ket as horn chains. The buyer bought of the seller '" all the horn chains they manufactured." The chains regularly manufactuTed by the seller, though they were what were known as horn chains in the market, were made partly of horn and partly of hoof. It was held that there was no warranty that the chains were all horn. The court put as an illustration the ease of a sale of " gold ■watches." There is of course no warranty that watches sold under that designation are made of gold in every part. So a sale of a " Xo. -t fire-proof safe "' does not carry with it a warranty that the safe is in fact absolutely fire-proof.^" These cases are not, how- ever, opposed to the rule suggested in this section. In each of the less than twelve inches in thiek- "ness " ) ; Osgood v. Lewis, 2 H. c& Gr. 495, 18 Am. Dec. 317 ("winter pressed sperm, oil") ; Edgar r. Breck, 172 Mass. 581, 52 N. E. 1083 (bulbs of a named variety) : Gould r. Stein, U9 Mass. 570, 22 N. E. 47, 5 L. E. A. ai3, 14 Am. St. Rep. 455 ("'second-class ceara rubber") ; Hen- shaw v. Bobbins, 9 Mete. 83, 43 Am. Dee. 307 ("blue vitri-ol"); Wolcott r. Mount, 36 X. J. L. 262, 13 Am. Eep. 438, 38 N. J. L. 496, 20 Am., Bep. 425 ( " strap-leaf, red-top t-amip seed"); Hawkins i. Pemberton, 51 y. Y. 198, 10 Am. Rep. 595 ("paris green") ; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13 ("large Bristol' cabbage seed " ) ; Depew r. Peck Hard'- ware Co.. 121 X. Y. App. Div. 28; 105 y. Y. Suppl. 390 (seed) ; Abel r. Murphy, 43 X. Y. Misc. Rep. 648, 88 N. Y. Suppl. 256 ("grape fruit"); Lewis V. Eountree; 7* N. C. 323^ ("strained rosin"); Northwestern Cordage Co. v. Rice,. 5 X. Dak. 432, 67 X. W. 298, 57 Ami St. Rep. 563 ("pure manilla twine"); Morse v. Tnion Stock Yards, 21 Or. 289, 28' Pac. 2, 14 L. K. A. 157 ("beef cat- tle"); Hoffman v. Dixon, 105 Wis. 315, 81 X. W. 491, 76 Am. St. Rep. 916 ("ra-pe seed"). See also Tinken Carriage Co. c. Smith,- 123 Iowa, 554, 99 X. W. 183; Hastings v. Levering, 2 Pick. 214, 13 Am. Dec. 420 ;- Hogius r. Plympton', 11 PicK 97; Van Wyck V. Allen,. 69 X. Y. 61, 25 Am. Rep. 136; Jones i. George, 61 Te.x. 345, 48 Am. Rep. 280; Drew r. EdniundS, 60 Vt. 401, 15 Atl. lOO', 6 Am. St. Rep. 122. Alsomfrd, §§223-225. In Penn^ sylvania, however, in conformity with the narrow limits imposed by the law of that State on warranty, it is held that it is only in executory contracts to sell that the description of the goods imports a promise on the part of the seller: ' Selser r. Roberts, 105 Pa. St. 242; Ryan c. Ulmer, 108 Pa. St. 332, 137 Pa. St. 310, 5« Am. Rep. 210; Fogel r. Brubaker, 122 Pa. St. 7, 15 Atl. 692. See further, supra, § 199. "Swett i:. Shumway, 102 Mass. 386. " Diebold Safe Co. v. Huston, 55 Kans. 104, 39 Pac. 1035, 28 L. R, A,. 53. ; / 270 Formation of the Conteact. cases just put there was a warranty. The question simply related to the construction of it. What is the proper meaning of " horn chain," "gold watch," " ii re-proof safe?" The seller warrants anything he sells by such a description to be the sort of thing that a reasonable person, having knowledge of any customs of trade bearing upon the matter which would be binding upon him, would be justified in calling by that name.^^ And where the bargain re- lates to specific goods, which are known to the buyer, words which can only properly be understood as identifying the goods, not as stating directly or indirectly some fact about them as an induce- ment to the purchase, there is no warranty.'* The reason for this is not because the words are descriptive, but because the buyer does not rely on the description as a basis for his purchase. § 206. Reliance of the buyer. — As it is essential to maintain the action of deceit that the plaintiff should have relied, to his in- jury, on the false statements complained of, and as it is necessary in assumpsit that the plaintiff should have done some act in re- liance upon the offer, so it was an early requirement of the law of warranty that the buyer should have relied on the warranty. The cases in which the principle was first brought out relate to state- ments in regard to goods which were obviously defective, espe- cially horses with defective eyes. In an early case, Brian, C. J., said : " If a man sells me a horse and warrants that he has two eyes, if he has not, I shall not have an action of deceit, as I could know this at the beginning." ^^ This was repeated in later cases and the point of the remark was brought out by a later discrimi- nation, " and the distinction is taken where I sell a horse that has no eye, there no action lies ; otherwise where he has a counterfeit, false, and bright eye." ^' It is evident, however, that a buyer might rely on a sell-er's statement and be deceived even though he could have found out the truth by careful inspection and this was recognized before long.^^ There is danger of giving greater effect '* See also Rollins v. Northern Land '' Southerne v. Howe, 2 Rolle, 5. Co., Wis. , 114 N. W. 819. See also Y. B., 13 Henry IV, 1, 4. "St. Anthony Elevator Co. v. =^Butterfield v. Burroughs, 1 Salk. Princeton Mill Co., 104 Minn. 401, 211. This was an action for breach 116 N. W. 9.35. And see cases cited of warranty of a horse which lacked in note 13. an eye. After verdict for the plaintiff " Y. B., 11 Ed. IV, 6, 10. it was objected in arrest of judgment Conditions and Waeeanties. 271 to the requirement of reliance than it is entitled to. It is, of course, true that the warranty need not be the sole inducement to the buyer to purchase the goods.^* And as in assumpsit, as a general rule no evidence of reliance by the buyer is necessary other than that the seller's statements were of a kind which naturally would induce the buyer to purchase the goods and that he did purchase the goods.^* The difficulties which arise in re- gard to questions of reliance relate to several special cases which may be classified under four headings, as follows: 1, Obvious or known defects; 2, inspection; 3, statements made previously to the bargain; 4, statements made subsequent to the bargain. § 207. Obvious or known defects. — The rule in regard to obvious defects is not always clearly stated, and two conceptions exist which are not always kept separate. In the first place a warranty in general terms is held not to cover defects which the buyer must have observed.^^ This is a rule of a construction, and that " the -want of an eye is a visible thing, whereas the warranty extends only to secret infirmities, but to this it was answered and resolved by the court that this might be so, and was intended to be so since the jVry has found that the defendant did war- rant." Eoscorla v. Thomas, 3 Q. B. 234; 3 Bl. Comm. 165. "' Mitchell c. Pinckney, 126 Iowa, 696, 698, 104 N. W. 286; Chicago Telephone Supply Co. r. Marne, 134 Iowa, 252, 111 N. W. 935. And see cases on warranty, passim. "Shordan v. Kyler, 87 Ind. 38; Mitchell V. Pinckney, 126 Iowa, 696, 699, 104 N. W. 286 ; J. I. Case Co. v. McKinnon, 82 Minn. 75, 84 N. W. 646. ^Thompson v. Harvey, 86 Ala. 519, 5 So. 825; Huston v. Plato, 3 Colo. 402; Marshall v. Drawhorn, 27 Ga. 275; Eagsdale v. Shipp, 108 Ga. 817, 34 S. E. 167; O. H. Jewell Filter Co. V. Kirk, 102 111. App. 246; affd., 200 111. 382; Connersville v. Wadleigh, 7 Blackf. 102, 41 Am. Dec. 214; Dean v. Morey, 33 Iowa, 120; Storss V. Emerson, 72 Iowa, 390, 34 N. W. 176; Scott v. Geiser Mfg. Co., 70 Kans. 498, 80 Pac. 955 ; Richardson V. Johnson, 1 La. Ann. 389 ; Brown V. Bigelow, 10 Allen, 242; McCormick V. Kelly, 28 Minn. 135, 9 N. W. 675; Hansen v. Gaar, 63 Minn. 94, 65 N. W. 254; Branson r. Turner, 77 Mo. 489; Doyle v. Parish, 110 Mo. App. 470, 85 S. W. 646; Hanson v. Edgerly, 29 N. H. 343; Leavitt v. Fletcher, 60 N. H. 182; Schuyler v. Russ, 2 Caines, 202 ; Jennings v. Che- nango County Ins. Co., 2 Denio, 75 Day r. Pool, 52 N. Y. 416, 11 Am. Rep. 719; Parks v. Morris Ax & Tool Co., 54 N. Y. 586 ; Bennett v. Buchan, 76 N. Y. 386 ; Van Schoick v. Niagara Ins. Co., 68 N. Y. 434; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702; Mulvany v. Rosenberger, 18 Pa. St. 203; Fisher V. Pollard, 2 Head, 314, 75 Am. Dec. 740; Long v. Hicks, 2 Humph. 305; Williams v. Ingram, 21 Tex. 300; Mc- Afee V. Meadows, 32 Tex. Civ. App. 105, 75 S. W. 813; Hill v. North, 34 Vt. 604. 272 rOEMATION OP THE CoiSrTEACT. is based on an endeavor by tbe court to give efEect to the intention of the parties. If the seller of a horse which is obviously blind, and which both parties know to be blind, says he is sound, the meaning of sound as used in that connection must be sound except as to his eyes. The same rule is applicable to a defect which is not obvious, but of which the seller tells the buyer,^° or of which the buyer knows."' Doubtless the early authorities^^ go beyond this and justify the conclusion tliat even if the seller said " I war- rant his eyes are all right," the buyer could not recover. It ma}' be supposed in such a case, either that the buyer did actually ob- serve the defect or that he did not. In so far as the supposition is that the buyer actually observed the defect the question may seem academic, but it is not altogether so; for though the defect may be observed, the nature or extent, or consequence of it, may not be. There seems no reason if the seller contracts in regard to an obvious defect or if he makes representations vipon which the buyer in fact relies, why the seller should escape liability. It can hardly lie in his mouth to say that though he was making false representations or promises to induce the buyer to make the bargain, and the buyer was thereby induced, he should not have been. Certainly there is a growing tendency in the law not to allow that sort of arg-ument.^^ A well recognized limitation on any doctrine freeing the seller from liability for statements or promises in regard to obvious defects is that if the seller successfully uses "'Knoepker v. .Vhman, 99 Mo. App. open and visible, it the intention to TO, 7-2 S. W. 483. do so is clearly manifested," is the "Harwood r. Breese, 73 Xeb. 521, language of the Supreme Court of 103 X. W. 55. Minnesota in the case of Fitzgerald =' See s'ipra, § 206. r. Evans, 49 Minn. 541, 52 N. W. " In Norrls r. Parker, 15 Tex. Civ. 143. In Watson r. Roode, 30 Xeb. App. 117, 38 R. W. 259, the court 2(14, 46 X. W. 491, it is said: "The said: "There seems to be no good seller may bind himself against pat- reason why a warranty may not cover ent defects, if the warranty is so obvious defects as well as others, if worded.'' Henderson i\ Railroad Co., the vendor is willing to give it, and 17 Tex. 560, 67 Am. Dec. 675; Hohart the buyer is willing to buy defective r. Young, 63 A^t. 363, 21 Atl. 612, property on the assurance of the war- 12 L. R. A. 693 ; Powell r. Chittick, ranty. If he relies on his own judg- 89 Iowa, 513, 56 X. W. 652; Wil- ment alone, he does not rely on his liams v. Ingram, 21 Tex. 300. See warranty." " A special warranty on also Branson v. Turner, 77 Mo. 489, the sale of a horse may be made to stated supra, § 204, note; June V. cover blemishes or defects which are Falkinburg, 89 Mo. App. 563. Conditions ani> Waj{santies. 273 art to conceal tiie defects, tlie seller is liable.^" That tiie bnyer may be protected from the consequences of knowTi defects by a wan-anty is well settled.^^ § 208. liBspectioitt. — Inspection may conceivably have a three- fold importance in this connection. In the first place, if the de- fect was one which could be discovered by inspection and the buyer inspected the goods, it may be urged that the parties did not intend that the language used should cover this defect. This reasoning is analogous to that adopted in regard to obvioua defects. An obvious defect, however, means a defect that is apparent upon casual inspection and does not need careful or expert examination for its discovery. If the defect required examination of the latter sort, it is still more plain than in the cases of obvious defects that a seller who clearly promises or affirms that the goods are i free from the defect which in fact vitiates them will be liable. A second aspect in which inspection or rather the right to in- spect may have a bearing on the seller's liability arises where the buyer has full power and opportunity to inspect, and inspection, if made, would have disclosed the defective character of the goods. ™Kenner u. Harding, 85 HI. 264, 268. 28 Am. Eep. 61.5, citing Chadsey V. Greene, 24 Conn. 562 ; Robertson r. Clarkson, 9 B. Mon. 506; Gant v. Shelton, 3 B. Man. 420; Irving v. Thomas, 18 Me. 418. To the same effect are Armstrong i\ Bufford, 51 Ala. 410; Koseman v. Canovan, 43 Cal. 110; Perdue v. Harwell, 80 Ga. 150, 4 S. E. 877; Brown v. Weldon, 99 Mo. 564, 1.3 S. W. 342; Biggs v. Perkins, 75 N. C. 397. " Thompson v. Harvey, 86 Ala. 519, 5 So. 825; Fitzgerald v. Evans, 49 Minn. 541, 52 IST. W. 143; Branson V. Turner, 77 Mo. 489; Samuels v. Guin's Estate, 49 Mo. App. 8 ; Watson V. Roode, 30 Neb. 264, 46 N. W. 491, 43 Neb. 348, 61 N. W. 625; Pinney 17. Andrus, 41 Vt. 631. In all these cases u, defect in an animal which was the subject of the sale was ob- served by the buyer and to induce the sale the seller warranted or repre- 18 sented the disease to he less serious than it in fact proved. The seller was, therefore, held liable. Walker, Evans & Cogswell Co. v. Ayer, S. C. , 61 S. K 557, is a similar case in regard to a typesetting machine. Compare with these cases Ragsdale r. Shipp, 108 Ga. 817, 34 S. E. 167. Tliere the buyer exam- iTiing an animal offered for sale, and finding its throat swollen, asked the seller what was tlie matter with it? The seller replied that it had shipping cold and would be all right in a few days. There was nothing to show that the buyer did not have as full knowledge of the nature of the dis- order as the seller. It was held to be merely an expression of opinion. The court does not decide, however; that if the other requisites of a warranty had existed, the fact that the defect was patent would ItavE prevented the seller from being liable. 274 FOEMATION OF THE CoNIEACT. but the buyer fails ito make the inspection. "Whatever may be the law in regard to implied warranty^^ in the case of express war- ranty it is no defense that the buyer, had he inspected, might have found out the falsity of the seller's statements. The buyer is justified in taking the seller at his word, and in relying upon the seller's statements rather than upon his own examination.'*^ A third possible importance of inspection by the buyer is as ex- cluding reliance by the buyer on any statement of the seller in regard to the goods. It was held in a recent decision in Xew York that such was the effect of inspection.^* Such a decision, how ever, misinterprets the requirement of reliance. There is no '^ See inp-a, § 234. Courts some- times fail to observe distinction between express and implied war- ranty in this respect. See e. g., Egbert v. Hanford Produce Co., 92 N. Y. App. Div. 252, 86 N. Y. Suppl. 1118. ^' Thompson r. Bertrand, 23 Ark. 730. The seller of' a slave gave a warranty of soundness. The buyer might have discovered the unsound- ness of the slave's feet and knee by examination. The seller was held liable upon the ^^arranty. Leitch v. CTillette-Herzog Mfg. Co., 64 Jlinn. 434, 67 N. W. 352. The seller of 500 iron bedsteads stated that if the parts of one of the beds went together prop- erly the parts of all would do so. The buyer having found that one could be put together properly made no further inspection. It was held that the plaintiff was entitled to re- cover, though had he set up more of the bedsteads he would have discov- ered that the parts would not go to- gether properly. See also Jones v. Just, L. R. 3 Q. B. 197, 204; First Bank r. GrindstafF, 45 Ind. 158 ; Meickley !;. Parsons, 66 Iowa, 63, 23 N. W. 265, 55 Am. Rep. 261; Cook r. Gray, 2 Bush, 121 ; Gould v. Stein, 149 Mass. 570, 577, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Woods 1-. Thompson, 114 Mo. App. 38; Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122; Barnum Wire Works v. Seley, 34 Tex. Civ. App. 47, 77 S. W. 827 ; Tacoma Coal Co. r. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890. " Crocker-Wheeler Electric Co. i". Johns-Pratt Co., 29 N. Y. App. Div. 300; affd., Avithout opinion, 164 X. Y. 593, 58 X. E. 1086. The seller of material called " vulcabeston " repre- sented that it was made of the best para rubber and selected asbestos, and that it was practicallj' a perfect in.sulating material. Specimens were furnished the buyer who experimented with them. The court said, as to the seller's statements: "They were not relied upon by the plaintiff or its predecessor; for, before making any contract, the officers of the plaintiff or its predecessor satisfied themselves, by their own investigation or experi- ment, that the representations made respecting the material and its suffi- ciency for their purposes were true. It is elementary that, in order to entitle the plaintiff to maintain an action for breach of an express war- ranty, it must be established that the warranty was relied on. Such was not the case here," Conditions and Waekanties. 275 reason in the nature of things why a buyer should not rely both on the seller's statements and on his own judgment. Observa- tion shows that s^iers->-Constantiy do tins, and accordingly "ft Is" generally and rightly held that inspection by the buyer does not excuse 'the seller from liability for words which amount to an express warranty.^^ § 209. Statements previous to the bargain; English decisions. — If a warranty be conceived of exclusively as an express con- tract, it is obvious that an offer of the warrantor accepted by the buyer is essential. If a statement made by the seller precedes the sale by a long period and especially if the statement was not made as part of the negotiatioms culminating in the sale, it will be diffi- cult to find such an oifer and acceptance. On the other hand, it is apparent that the buyer naay be as completely deceived by state- ments prior to the ultimate negotiations as by statements made at the time of the bargain. If the view is sound that has been pre- viously expressed, that the law imposes upon the seller the obliga- tion of a warrantor, not simply when he agrees to assume it, but also when he induces the buyer to enter into the bargain by posi- tive statements in regard to the goods, the buyer may well be protected. The original basis of warranty, as has been seen, a basis which still cannot be safely lost sight of, is the deception of the buyer because of his natural and, therefore, justifiable reliance on the seller's statements. This should furnish the test by which the seller's liability for p»ast statements should be governed. There seems no reason to distinguish a case where the seller makes a statement in regard to goods at the time of the sale, a little while before that time, or a long time before, if the statement was originally made with reference to a possible sale, or was expressly or impliedly adopted as the basis for subsequent negotiations. Affirmation may induce the sale as fully when the buyer buys after considerable further negotiation, as when he buys immediately. The question has vexed the English courts during == Miller v. Moore, 83 Ga. 684, 10 Am. St. Rep. 455; Smith u. Hale, 158 S. E. 360, 6 L. E. A. 374, 20 Am. St. Mass. 178, 33 N. E. 493, 35 Am. St. Eep. 329; South Bend Co. v. Cald- Rep. 485; Keely v. Turbeville, 11 ■well, 21 Ky. L. Eep. 1084, 1363, 55 Lea, 339: Woods v. Thompson, 114 S. W. 208 ; Gould v. Stein, 149 Mass. Mo. App. 38. 570, 22 N. E. 47, 5 L. E. A. 213, 14 276 EOEMATIOB OE Tl-IE CoNTEACT. the last centary, and it was held in two or three eases which are still cited that the affirmation must have been made at the time of the sale in order to constitute a warranty.^" It is believed, however, that these decisions are inconsistent with later English eases. ^' "' It should be premised that in Lrsnoy v. Seltay, Ld. Eaym. 1118, 1120, Lord Holt had said: "If, upon Li treaty about buying certain goods, the seller warrants them, the Iniyer takes time for a few days and then gives the seller his price, though the waj-ranty was before the sale,j'et this will be well, because the war- rantT.' was the ground of the treaty; and this is i(Xirranti.::ando vendidit." Camac v. Warriner, [1845] 1 C. B. 3.1C. In this case the material had been bought called oropholithe. In September the buyer's agent had a, conversation with tlie seller's agent aliovit roofing certain buildings with this patent article. On this occasion the seller's agenit gave the buyer's agent a prospectus which described the material as fit for external roof- in