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Author: 
 
 emington 
 
 J 
 
 Title: 
 
 code of the law of 
 
 sales 
 
 Place: 
 
 York 
 
 Date: 
 
 [191 
 
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 UNIFORM CODE OF i 
 
 THE IjA OJ- sales i 
 
 By HAROLD REM /]^TON, Esq. 
 of the New York Bar 
 
 Issued by 
 The Fourth National Bank 
 of the City of New York 
 
 I 
 
m^ ^1^^ ^^ % Xm^ 
 
 "^2S 
 
 in tlje Citp of ^eto Horfc 
 
 T TUH A D V 
 X«ll> JK./iJK X 
 
 School of Business 
 
 Uniform Code of 
 the Law of Sales 
 
 By 
 
 Harold Remington, Esq. 
 of the New York Bar 
 
 Issued by 
 
 The Fourth National Bank 
 of the City of New York 
 

 
 
 I 
 
 {^■^ti^^g 
 
 Copyright, 1911, by 
 
 The Fourth National Bank 
 of the City of New York 
 
 i 
 
 
 < 
 
 i 
 
 The Trow Press 
 New York 
 
 UNIFORM COMMERCIAL LAWS 
 
 * AND UNIFORM CODE OF SALES 
 
 Jd usiness men of New York are 
 particularly interested in the 
 law, recently taking effect, 
 adopting for the State of New 
 York the " Uniform Law Re- 
 garding Sales of Goods," which 
 has been already enacted in 
 identical form in several of 
 the more important commercial 
 states of the Union. It is in 
 line with the tendency to make 
 uniform, throughout the forty- 
 eight states of the Union, the 
 laws concerning trade and com- 
 merce. Thus, in many of thet 
 
,jmm 
 
 ■■i 
 
 states the " Uniform Negotiable 
 Instruments Code " has likewise 
 been adopted. We already have 
 throughout the United States 
 the uniform Bankruptcy and 
 Inter - State Commerce laws 
 passed by Congress; and the 
 recent decisions of the United 
 States Supreme Court, under 
 the Sherman Act relating to 
 trusts and under the " Carmack 
 Amendment" relating to the 
 liability of a receiving railroad 
 for losses on through transpor- 
 tation, have brought us to a 
 realizing sense of what vital 
 importance to business interests 
 these uniform laws have become 
 under our complex commercial 
 system. 
 
 One of the prime reasons, in- 
 
 2 
 
 V 
 
 ' 
 
 deed, for the creation and estab- 
 lishment of the United States 
 Constitution was precisely the 
 manifest advantage of having 
 uniform laws for the determina- 
 tion of the questions arising 
 out of trade and commerce and 
 the giving of credit. It was 
 with this in view that the 
 framers of the Constitution 
 placed therein, side by side, the 
 two clauses giving to the Na- 
 tional Government the power, 
 respectively, to regulate Inter- 
 State commerce and to pass 
 uniform laws on the subject of 
 bankruptcy, and the wisdom of 
 the framers of the Constitution 
 in so doing is becoming more 
 manifest day by day as these 
 national laws are being resorted 
 
 S 
 
to for solving one after another 
 our compUcated problems. 
 
 However, there were still left 
 certain subjects, of equally 
 vital interest to merchants, 
 manufacturers and other busi- 
 ness men, which were not placed 
 under the control of the Fed- 
 eral Government and the laws 
 in relation to which can only 
 be made uniform by being 
 adopted by the different Stat! 
 Legislatures. Such are the sub- 
 jel of negotiable instnunenU. 
 sales, exemptions, fire insurance 
 policies and the like. The laws 
 on these subjects, affecting as 
 they do the interests of all 
 those who deal with persons 
 outside as well as within their 
 own states, have been becoming 
 
 ! 
 
 more and more imperatively in 
 need of uniformity. As the ex- 
 tension of the telegraph, tele- 
 phone, railroad and postal sys- 
 tems have brought into closer 
 intercommunication the people 
 of distant states of our Union 
 than were those of even adja- 
 cent states a century ago, it 
 has come to be realized that we 
 must have uniformity in other 
 matters relating to business 
 dealings than simply those com- 
 ing strictly within the purview 
 of the Inter-State Commerce 
 Act and the Bankruptcy Act. 
 Nevertheless, it has been an up- 
 hill task to secure the adoption 
 of the " Uniform Codes " relat- 
 ing to sales, negotiable instru- 
 ments, etc., by the states that 
 
 5 
 
 II 
 
 I: i| 
 
[ft 
 
 If ' 
 
 have thus far accepted them, 
 and the business men of our 
 country owe a debt of grati- 
 tude to the Association and 
 the Commissions which have 
 been the most active powers in 
 bringing about their adoption, 
 for their unceasing efforts and 
 splendid devotion to the task. 
 The adoption, then, by the 
 State of New York, of the 
 " Uniform Law Regarding 
 Sales of Goods " thus marks 
 another step forward in the 
 growth of that uniformity of 
 commercial law so essential to 
 the business development of our 
 country. 
 
 i 
 
 I 
 
 8 
 
 II 
 
 DOES NOT EADICALLY CHANGE 
 EXISTING LAW BUT MAKES IT 
 CliEAJlEE AND MOBE UNIFORM 
 
 1 HIS particular law, like the 
 other "Uniform Codes," does 
 not make any radical departure 
 from the ordinary law. In- 
 deed, its purpose to a great 
 degree is merely to " declare " 
 what is the existing law, as 
 recognized by the consensus of 
 the best judicial opinion in the 
 United States. To be sure, 
 here and there, slight changes 
 are made by it from the rules 
 that formerly prevailed in the 
 local law, yet, in the main, the 
 principles of commercial law 
 
 7 
 
 1 
 m 
 
 
 ;i; II 
 

 are left unchanged, its adop- 
 tion simply bringing our law 
 into uniformity of wording 
 with the laws of the other 
 states, so that henceforth the 
 decisions of our state can be 
 relied upon to express the 
 rights of the parties with re- 
 gard to transactions in other 
 states and vice versa. 
 
 I 
 
 1 
 
 
 p 
 
 8 
 
 ni 
 
 ONE IMPORTANT CHANGE IN 
 
 NEW YORK LAW SALES OF 
 
 GOODS NOT YET MANUFAC- 
 TURED, ETC. 
 
 Though the "Uniform Law 
 Regarding Sales of Goods " 
 makes but little change in the 
 laws of New York, yet in one 
 respect, at least, it does make a 
 most important change. Here- 
 tofore, under the law of New 
 York, a sale of goods not yet 
 in existence nor owned by the 
 seller but to be manufactured 
 or procured elsewhere by him, 
 has not been within the pro- 
 tection of the " Statute of 
 Frauds," the Statute of Frauds 
 
 9 
 
 li",* 
 
I 
 
 requiring that a sale or con- 
 tract of sale, of goods amount- 
 ing to $50 or more in value, in 
 order to be enforceable in the 
 courts, must either be evidenced 
 by some memorandum in writ- 
 ing, duly signed, or else by a 
 part payment of the price or 
 part delivery of the goods, or 
 by the acceptance and receipt 
 of something in " earnest.'' 
 
 : 
 
 10 
 
 jy 
 
 GOODS NOT YET MANUFACTUEED, 
 NOW WITHIN STATUTE 
 
 HowEVEE, since the adoption 
 of the Uniform Code, sales 
 must now be so evidenced " not- 
 withstanding that the goods 
 may be intended to be delivered 
 at some future time or may not 
 at the time of such contract or 
 sale be actually made, procured, 
 or provided, or fit, or ready for 
 delivery, or some act may be 
 requisite for the making or 
 completing thereof, or render- 
 ing the same fit for delivery " ; 
 the only exception being that 
 " if the goods are to be manu- 
 factured by the seller specially 
 
 11 
 
 I 
 
for the buyer, and axe not suit- 
 able for sale to others in the 
 ordinary course of the seller's 
 business/' then the requirement 
 of a written memorandum, part 
 payment or part delivery, will 
 not apply. From this time on, 
 then, merchants and manufac- 
 turers, and persons buying from 
 them, cannot enforce contracts 
 for the sale or purchase of 
 goods to be manufactured, or 
 to be procured of others, un- 
 less either a memorandum of 
 the contract be in writing, 
 signed by the other party or 
 his agent, or unless part of the 
 goods have been " accepted " 
 and " actually received," or un- 
 less part payment has been 
 made upon the purchase price. 
 
 1% 
 
 I 
 
 ESSENTIAI.S OF " WRITTEN 
 
 MEMOEANDUM 
 
 55 
 
 It will be well then for mer- 
 chants to bear in mind some of 
 the essentials of this written 
 "memorandum." The written 
 memorandum need not be made 
 on a single piece of paper, but 
 may consist of a series of let- 
 ters, although the letters should 
 either each be signed by the 
 party to be charged therewith 
 or the signed ones should refer 
 to the others sufficiently to 
 make the chain complete, link- 
 ing the different letters into 
 one " written memorandum." 
 The memorandum must be 
 
 13 
 
 III 
 
signed, but it need not be 
 signed in any prescribed place, 
 a signature anywhere in the 
 memorandum being sufficient, 
 although it must be a signa- 
 turCj that is to say, a name 
 written for the purpose of a 
 signature. The memorandum 
 must, also, somewhere along 
 the line, describe or name the 
 parties, the buyer and seller, 
 also the goods and the quanti- 
 ties of them, the price, the 
 terms of credit (where credit is 
 extended), the time and place 
 of delivery, if any had been 
 agreed upon, also all other spe- 
 cial terms that are material to 
 the agreement. It is well for 
 the merchant and manufac- 
 turer, especially where he is 
 
 f 
 
 selling goods that are not yet 
 manufactured or procured by 
 himself, to bear in mind these 
 essential points of the " written 
 memorandum." 
 
 ? 
 
 (, 
 
 15 
 
yj 
 
 GOOBS FOE SPECIAL USE NOT 
 WITHIN STATUTE 
 
 'Where the goods manufac- 
 tured are, however, specially 
 adapted to the buyer's own use, 
 and are not salable upon the 
 general market, nor adaptable 
 to sale on the general market, 
 then no written memorandum 
 need be made, as, for example, 
 where envelopes are sold printed 
 with the name and address of 
 the buyer, or where a tailor 
 makes a suit of clothes for a 
 particular person, according to 
 that person's measure, even 
 though the garment might in a 
 certain sense be salable as a 
 "second hand" garment on 
 the "general market," 
 
 16 
 
 VII 
 
 new yoek swings into line 
 
 This change in New York law, 
 requiring a written memoran- 
 dum, or part delivery or part 
 payment, in cases where goods 
 are not manufactured or ob- 
 tained, simply swings New York 
 law into line with the law in 
 the great majority of the other 
 states. 
 
 W 
 
VIII 
 
 INTERNATIONAL UNIFORMITY 
 THE ULTIMATE GOAL 
 
 It IS interesting to note, too, 
 that the wording of the " Uni- 
 form Law Regarding Sales of 
 Goods " thus in process of adop- 
 tion by the different states 
 of the UnitM States, is ahnost 
 identical in wording with the 
 English law, from whence it 
 was derived; and the probabili- 
 ties are that, some time in the 
 future, the law as to sales of 
 goods will be absolutely iden- 
 tical throughout not only the 
 United States but also England 
 and her colonies and dependen- 
 cies, thus looking towards an 
 
 international uniformity In the 
 laws relating to sales of goods, 
 as in relation to negotiable in- 
 struments and other commercial 
 matters. 
 
 19 
 
IX 
 
 it 
 
 SALES "by sample," SALES 
 " BY DESCKIPTION " 
 
 Othee parts of this "Uniform 
 Code" are taken up with other 
 interesting matters. Thus, in 
 carefully chosen language, the 
 Code sets forth what warran- 
 ties are " implied " in sales " by 
 sample " and in sales " by de- 
 scription." It sets forth also 
 the rights of the parties where 
 a sale is evidenced or accom- 
 panied by a negotiable instru- 
 ment, and where that instru- 
 ment is negotiated, etc. 
 
 20 
 
 ..zv 
 
 " NECESSARIES," SALES SUFFI- 
 CIENT TO BIND INFANTS, 
 ETC. 
 
 1 HE Code defines what are 
 " necessaries " for which an in- 
 fant or a drunken person or 
 one lacking in mental capacity 
 may be bound, declaring that 
 " necessaries ... mean goods 
 suitable to the condition in life 
 of such infant or other person, 
 and to his actual requirements 
 at the time of delivery." 
 
 21 
 
 I' 
 
 iM 
 
 t^M 
 
i 
 
 k ! 
 
 
 XI 
 
 SALES OP UNDIVIDED SHARES 
 AND WHEEE GOODS AEE DE- 
 STROYED 
 
 1 HE rights of the parties as 
 to sales of undivided shares, or 
 shares held in common, are also 
 carefully defined, as well as the 
 rights of the parties where 
 goods sold or contracted to be 
 sold have been destroyed. 
 
 I 
 
 k 
 
 f 
 
 fl 
 
 XII 
 
 " IMPLIED WARRANTIES " 
 
 What are and what are not 
 " implied " warranties are like- 
 wise defined in the Code, as, for 
 example, implied warranties of 
 title or of quality, and implied 
 warranties in cases where goods 
 are sold by description or by 
 sample, the seller being, by 
 an " implied warranty," bound 
 to make good a fault though 
 no warranty nor representation 
 was by him expressly given. 
 
 As to implied warranties of 
 quality, the Code says that 
 " there is no implied warranty 
 or condition as to the quality 
 or fitness for any particular 
 
 23 
 
 I ^ 
 
 ff , 
 
 ' ¥ J 
 
I' 
 
 purpose of goods supplied un- 
 der a contract to sell or a sale, 
 except as follows, to wit: 
 • "1. Where the buyer . . • 
 makes known to the seller the 
 particular purpose for which 
 the goods are required, and it 
 appears that the buyer relies 
 on the seller's skill or judg- 
 ment . . . there is an implied 
 warranty that the goods shall 
 be reasonably fit for such pur- 
 pose; 
 
 "2. Where the goods are 
 bought by description from a 
 seller who deals in goods of 
 that description . . . there is 
 an impHed warranty that the 
 goods shall be of merchantable 
 quality; 
 
 " S. If the buyer has exam- 
 
 jC4 
 
 I 
 
 ined the goods, there is no im- 
 plied warranty as regards dam- 
 ages which such examination 
 ought to have revealed; 
 
 " 4. In the case of a con- 
 tract to sell or a sale of a speci- 
 fied article under its patent or 
 other trade name, there is no 
 implied warranty as to its fit- 
 ness for any particular pur- 
 pose; 
 
 " 6. An implied warranty or 
 condition as to quality or fit- 
 ness for a particular purpose 
 may be annexed by the usage 
 of trade, or by custom. 
 
 " 6. An express warranty or 
 condition does not negative a 
 warranty or condition implied 
 unless inconsistent therewith." 
 
 25 
 

 WHEN TITLE PASSES TO GOODS 
 
 SOLD 
 
 Then the Code takes up the 
 questions relating to the pass- 
 ing of title to the goods sold, 
 laying down five rules for as- 
 certaining the mutual intent of 
 the parties with regard thereto, 
 the mutual intent of the par- 
 ties, of course, being the con- 
 trolling element in all cases. 
 These rules are as follows: 
 
 " Rule 1. — ^Where there is 
 an unconditional contract to 
 sell specific goods, in a deliver- 
 able state, the property in the 
 goods passes to the buyer when 
 
 26 
 
 
 
 the contract is made and it is 
 immaterial whether the time of 
 payment, or the time of deliv- 
 ery, or both, be postponed. 
 
 " Rule 2.— Where there is a 
 contract to sell specific goods 
 and the seller is bound to do 
 something to the goods, for the 
 purpose of putting them into a 
 deliverable state, the property 
 does not pass until such thing 
 be done. 
 
 "Rule 3. — 1. When the 
 goods are delivered to the 
 buyer ' on sale or return,' or 
 on other terms indicating an 
 intention to make a present 
 sale, but to give the buyer an 
 option to return the goods in- 
 stead of paying the price, the 
 property passes to the buyer 
 
 27 
 
 I 
 
on delivery, but he may revest 
 the property in the seller by 
 returning or tendering the goods 
 within the time fixed in the con- 
 tract, or, if no time has been 
 fixed, within a reasonable time. 
 
 " 2. When goods are deliv- 
 ered to the buyer on approval 
 or on trial or on satisfaction, 
 or other similar terms, the 
 property therein passes to the 
 buyer — 
 
 " (a) When he signifies his 
 approval or acceptance to the 
 seller or does any other act 
 adopting the transaction; 
 
 " (6) If he does not signify 
 his approval or acceptance to 
 the seller, but retains the goods 
 without giving notice of rejec- 
 tion, then if a time has been 
 
 28 
 
 i\ 
 
 fixed for the return of the 
 goods, on the expiration of 
 such time, and, if no time has 
 been fixed, on the expiration of 
 a reasonable time. What is a 
 reasonable time is a question of 
 fact. 
 
 " Rule 4. — 1. Where there 
 is a contract to sell unascer- 
 tained or future goods by de- 
 scription, and goods of that 
 description and in a deliverable 
 state are unconditionally ap- 
 propriated to the contract, 
 either by the seller with the 
 assent of the buyer, or by the 
 buyer with the assent of the 
 seller, the property in the goods 
 thereupon passes to the buyer. 
 Such assent may be expressed 
 or implied, and may be given 
 
 I 
 
•J I HilHlilii 
 
 * 
 
 I f 
 
 II 
 
 either before or after the ap- 
 propriation is made. 
 
 " 2. Where, in pursuance of 
 a contract to sell, the seller 
 delivers the goods to the buyer, 
 or to a carrier or other bailed 
 (whether named by the buyer 
 or not) for the purpose of 
 transmission to or holding for 
 the buyer, he is presumed to 
 have unconditionally appropri- 
 ated the goods to the contract, 
 except in the cases provided 
 for in the next rule and in sec- 
 tion one hundred and one. 
 This presumption is applicable, 
 although by the terms of the 
 contract the buyer is to pay 
 the price before receiving de- 
 livery^ of tl>e good., a„f the 
 goods ire marked with the 
 
 i 
 
 i 
 
 J 
 
 i 
 
 words * collect on delivery ' or 
 their equivalents. 
 
 " Rule 6. — If the contract 
 to sell requires the seller to 
 deliver the goods to the buyer, 
 or at a particular place, or to 
 pay the freight or cost of 
 transportation to the buyer, or 
 to a particular place, the prop- 
 erty does not pass until the 
 goods have been delivered to 
 the buyer or reached the place 
 agreed upon." 
 
 81 
 
 I 
 
 I J 
 
■■Mryp I ■■ ■■ y 
 
 BESERVATIOK OF TITI.E BY 
 
 u 
 
 SELLEE, AND STOPPAGE IN 
 TRANSITU " 
 
 The Code takes up the ques- 
 tions that arise where the seller 
 has reserved the right of pos- 
 session or the right of property 
 to goods shipped, as well as the 
 remedies of an unpaid seller, by 
 way of lien, or by way of 
 " stoppage in transitu." 
 
 S2 
 
 A 
 1 
 
 \ 
 
 I 
 
 \ 
 
 XV 
 
 the statute in reality a 
 - succinct treatise on the 
 iZaw op sales 
 
 1 HIS " Uniform Code," Indeed, 
 in its thirty pages, in reality 
 amounts to a treatise — ^a trea- 
 tise on the law of sales— log- 
 ically and clearly written, con- 
 cise and brief. It is rather 
 unusual to speak of a statute 
 being written in an interesting 
 manner, yet this "Uniform 
 Code " on the " Law of Sales 
 of Goods " is deserving of com- 
 mendation for its clearness of 
 Uterary style and its definite- 
 ness of expression. It is really 
 quite " readable " even to one 
 
 33 
 
accustomed to the dissipations 
 of the newspaper habit. Were 
 it not that there is a certain 
 element of danger in any lay- 
 man's attempt to understand a 
 law treatise, it would not be a 
 bad idea for the business man 
 — and especially for the mer- 
 chant or manufacturer — to pos- 
 sess himself of this "Uniform 
 Code." He would come to 
 know more of the world of sales 
 in the midst of which he lives 
 and moves and has his profit. 
 
 M 
 
 *'^ 
 
 11 
 
 
This book 
 \ped below, 
 € that time i 
 
 X:>^^'2..5 
 
 
 1 Roming'ton 
 
 i 
 
 3 
 
 Uniform code of law of sales* 
 
 ^^ ^ <J • J 
 
 COLUMBIA UNIVERSITY LIBRARIES 
 
 0044260873 
 
 AUG 2 91994 
 
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