To make a contract of sale there must be, as we have seen, two or more
parties, and a consideration must also be given. The sale is complete
when the _property_, or _title_, or _ownership_ in the thing bought
passes from the seller to the buyer. It is not necessary in order to
make a valid sale to deliver the thing bought. If the _title_ or
_ownership_ in the thing is not transferred, the sale still remains
incomplete.
The law supposes or assumes that a person will always pay for a thing
purchased. If I should go into a store, inquire the price of a book,
and, after learning the price, should say to the salesman, "I will
take the book," and he should wrap it up and give it to me and I
should then walk out with the book under my arm, he doubtless would
come to me and say in his politest manner: "Why, sir, you have
forgotten to pay me for it." Suppose I should say: "Oh, yes; but I
will come in to-morrow and pay." But if I happened to be a stranger,
and especially if there was a suspicious look about me, and he should
say they did not give credit in that store, and I was still inclined
to walk out with my book, he could insist that there had been no sale
and that I must give the book to him. The law would protect him in
taking it from me if he did not use undue force. The law assumes,
unless some different rule exists, that the buyer will always pay for
the thing purchased, yet in law there is no sale unless the purchase
money is actually paid.
Of course, credit may be given in a store--that may be the practice;
and if it is understood between buyer and seller that credit is to be
given, then a sale is complete as soon as the bargain is struck.
Indeed, so complete is the sale that if the buyer should say to the
salesman, "I will leave this here and return and take it in a short
time," and during his absence the store should be burned up and
everything perish, the buyer would be obliged to pay for the book. In
other words, after it had been sold, if still kept there the seller
would be merely the keeper, or bailee, which is the legal term, and he
would be obliged to use only ordinary care in keeping it. Suppose a
thief should come in and take it away--would the seller be responsible
for the loss? Not if he had used the same care in protecting it as in
protecting his own property.
Another illustration may be used to bring out the nature of a sale
more clearly. Suppose I have bought a particular work in a store,
either paying cash or buying it on credit, if that be the practice of
the store, and I should say to the salesman: "I am going down street
and on my return will call and take the book." During my absence I
meet a friend and tell him of my purchase, and he should say to me: "I
am very desirous to get that work; I am sure there is no other copy in
town. Will you not sell it to me?" Suppose I gave him an order,
directed to the seller, requesting him to deliver the work to the
person to whom I have sold it. If he should take the order to the
store he could claim the book as his own and the original seller would
be obliged to give it to him.
_It is very important_, however, in many cases _to make a delivery of
the thing sold_. As we have already stated, the title as between the
buyer and seller is actually changed or transferred at the time of
making the sale and it is therefore complete. But if a delivery of the
thing sold is not actually made and another person should come along
and wish to buy it, and the seller should prove to be, as he sometimes
is, deceitfully wicked, and should sell and deliver it to him, the
second buyer would get a good title and could hold it just as securely
as though it had not been previously sold to another. Of course, the
second buyer must be an innocent person, knowing nothing about the
first or prior sale. If he did not know and pays the money for the
thing he has bought and takes it away, he gets a perfectly good title
as against the first buyer. If he was not innocent the first buyer
could claim it and the second one would lose his money unless he was
able to get it back again from the seller. Of course, such a
transaction is a fraud on the part of the seller. Therefore it is
safer in all ordinary transactions for the buyer to take the thing he
has purchased unless he is sure that the seller is a perfectly honest
man, who will not practise any such fraud upon him.
Suppose the seller had things in his keeping that had been sold but
not taken away, and should fail in business, or that persons to whom
he owed money should sue him and try to hold not only all of the goods
still owned by him but even those which he had sold. Could they
succeed as against a person who had bought them in perfectly good
faith? It is said that the buyer in such cases can get his goods after
clearly showing that he had bought them and paid for them; but the
evidence of his purchase must be perfectly clear, otherwise the court
will not permit him to take them away and he will lose them.
If a merchant is to deliver a thing as a part of the contract of sale,
then, of course, he must do this; otherwise he is liable for his
failure to carry out his contract. This rule applies to most purchases
that are made in stores. The merchant intends to deliver the thing
sold, the buyer purchases expecting this will be done, and the price
paid for them is enough to cover the cost of taking them to the
buyer's house; in other words, the price of the goods, whatever it may
be, is intended to be enough to pay the merchant for his cost in
delivering them, and in such cases the contract is not complete until
a delivery has actually taken place.
Again, if the thing purchased is a part of a mass of goods, a
separation must be made to complete the contract. If a man should buy
100 barrels of oil which were a part of 1000 barrels, a separation of
some kind must be made of the particular ones sold. If one should buy
trees in a nursery, to make the contract complete the particular trees
must in some way be known, either by rows or every other tree--in
short, in some way the trees must be clearly set apart. If part of a
mass of timber is bought, the particular logs must be marked or in
some way pointed out from the other part of the mass. This rule
applies to all things bought that form a part of a large mass. The
mode of pointing them out depends on the nature of the thing; a
different kind of separation must be made in some cases from what is
necessary in others.