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When no price has reasonable price im

been fixed,

plied.

§ 85. Ir has already been stated that the price must consist of money, paid or promised. The payment of the price in sales for cash or on credit will be the subject of future consideration, when the performance of the contract is discussed. We are now concerned solely with the agreement to make a contract of sale. Where the price has been expressly agreed on, there can arise no question; but the price of goods sold may be determined by other means. (a) If nothing has been said as to price when a commodity is sold, the law impli s an understanding that it is to be paid for at what it is reasonably worth. In Acebal v. Levy, (al) the court of common pleas, while deciding this to be the rule of law in cases of executed contracts, expressly declined to determine whether it was also applicable to executory agreements. But in the subsequent case of Hoadly v. McLaine, (b) the same court decided that in an executory contract, where no price had been fixed, the vendor could recover in an action against the buyer, for not accepting the goods, the reasonable value of them; (b) and this is the unquestionable rule of law. (c)

(a) [If there be conflicting evidence as to the price agreed upon, the real value may be shown as tending to prove which party is right. Johnson v. Harder, 45 Iowa, 677; Bradbury v. Dwight, 3 Met. 31; Rennell v. Kimball, 5 Allen 365; Saunders v. Clark, 106 Mass. 331; Brewer v. Housatonic R. R. Co. 107 Ib. 277.] (a1) 10 Bing. 376.

(b) 10 Bing. 482.

(b) [McBride v. Silverthorne, 11 U. C. Q. B. 545.]

(c) Valpy v. Gibson, 4 C. B. 837; 2 Saund. 121 e, note (2), by Williams Serj. to Webber v. Tivill; [Joyce v. Swann, 17 C. B. N. S. 84; James v. Muir, 33 Mich. 223, 227. The law implies a contract in such cases to pay the market price at the

What is meant by

a reasona

§ 86. In Acebal v. Levy, the court further declared that where the contract is implied to be at a reasonable price, this means, "Such a price as the jury upon the trial of ble price. the cause shall, under all the circumstances, decide to be reasonable. This price may or may not agree with the current Acebal v. price of the commodity at the port of shipment at the Levy. precise time when such shipment is made. The current price of the day may be highly unreasonable from accidental circumstances, (cl) as on account of the commodity having been purposely kept back by the vendor himself, or with reference to the price at other ports in the immediate vicinity, or from various other causes."

fixed by

valuers.

§ 87. It is not uncommon for the parties to agree that the Price to be price of the goods sold shall be fixed by the valuers appointed by them. In such cases they are of course bound by their bargain, and the price when so fixed is as much part of the contract as if fixed by themselves. (d) But it is essential to the formation of the contract that the price should be fixed in accordance with this agreement, and if the persons appointed as val

time and place of delivery. McEwen v. Morey, 60 Ill. 32. The fact that the price has not been fixed will not necessarily prevent the title from passing, but is merely a fact to be considered by the jury in determining whether or not the title has passed. Callaghan v. Myers, 89 Ill. 566.]

(cl) [See Kountz v. Kirkpatrick, 72 Penn. St. 376, cited post, § 870, in note (a).]

(d) [See Brown v. Bellows, 4 Pick. 189; Fuller v. Bean, 34 N. H. 301, 304; Cunningham v. Ashbrook, 20 Mo. 553; McCandlish v. Newman, 22 Penn. St. 460; Nutting v. Dickinson, 8 Allen, 540; Newlan v. Dunham, 60 Ill. 233. A sale was made of a quantity of wheat, at a price McConnell ten cents per bushel less than v. Hughes.

the Milwaukee price should be on a day thereafter, which the seller should name, and the wheat was delivered in pursuance of such contract, and was destroyed by fire before the seller had named the day with reference to which the price should be determined. It was

held that the property in the wheat was in the purchaser, and the seller, having afterwards named such day, was entitled to the payment of the price, as thus fixed. McConnell v. Hughes, 29 Wis. 537; Easterlin v. Rylander, 59 Ga. 292; Ames v. Quimby, 96 U. S. 324. When the price of goods sold is to be fixed by a referee, the contract of sale is not perfect until the price is so fixed. Hutton v. Moore, 26 Ark. 382; Vickers v. Vickers, L. R. 4 Eq. 529; Scott v. The Corporation of Liverpool, 3 De G. & J. 334. A sale was made of 183 hogsheads of molasses at 31 cents a gallon, the number of gal- McLea v. lons to be determined by the Robinson. gauge-mark already placed upon the hogsheads by a customs officer. The plaintiffs paid for the molasses, the amounts paid being determined by the above method. As a matter of fact, there was not so much molasses as indicated by the gauge. It was held that the plaintiffs could not recover for the deficiency. McLea v. Robinson, 2 Pugsley & Burbridge (N. B.), 83; Brown v. Cole, 45 Iowa, 601.]

uers fail, or refuse to act, there is no contract in the case of an executory agreement, even though one of the parties should himself be the cause of preventing the valuation. (e) But if the agreement has been executed by the delivery of the goods, the vendor would be entitled to recover the value estimated by the jury, if the purchaser should do any act to obstruct or render impossible the valuation, as in Clarke v. Westrope, (f) where the defendant had agreed to buy certain goods at a valuation, and the valuers disagreed, and the defendant thereupon consumed the goods, so that a valuation became impossible.

is not arbi

§ 88. Where the parties have agreed to fix a price by the valuation of third persons, this is not equivalent to a submis- Valuation sion to "arbitration," within the common law procedure tration. act (g) (17 & 18 Vict. c. 125, s. 12), and it was therefore held in Bos v. Helsham, (h) that where one party had appointed a valuer, and the other, after a notice in writing, had declined to do the same, as required by the contract, the 13th section of the act did not apply, so as to authorize the valuer appointed to act by himself as a sole arbitrator. It has been held, however, Responsithat if the persons named as valuers accept the office or valuers. employment for reward or compensation, they are liable in damages to the parties to the contract for neglect or default in performing their duties. (¿)

Civil law as to price.

§ 89. In the civil law it was a settled rule that there could be no sale without a price certain. (k) "Pretium autem constitui oportet, nam nulla emptio sine pretio esse potest; sed et certum esse debet," was the language of the Insti

(e) Thurnell v. Balbirnie, 2 M. & W. 786; Cooper v. Shuttleworth, 25 L. J. Ex. 114; Vickers v. Vickers, L. R. 4 Eq. 529; Milnes v. Gery, 14 Ves. 400; Wilks v. Davis, 3 Mer. 507; [Wittowsky v. Wasson, 71 N. Car. 451. See Fuller v. Bean, 34 N. H. 304; De Cew v. Clark, 19 U. C. C. P. 155.]

(f) 18 C. B. 765; [Wittkowsky v. Was son, 71 N. Car. 456.]

(g) Collins v. Collins, 26 Beav. 306; 28 L. J. Ch. 184; Vickers v. Vickers, L. R. 4 Eq. 529.

(h) L. R. 2 Ex. 72. But see Re Hopper, L. R. 2 Q. B. 367; Re Anglo-Italian Bank, L. R. 2 Q. B. 452.

(i) Jenkins v. Betham, 15 C. B. 189; 24 L. J. C. P. 94; Cooper v. Shuttleworth, 25 L. J. Ex. 114.

(k) ["The language of the civil law upon this subject is the language of common sense." Story J. in Flagg v. Mann, 2 Sumner, 538. "But if the price can be made certain, it is sufficient." Bell J. in Fuller v. Bean, 34 N. II. 304. See Maddock v. Stock, 4 U. C. Q. B. 118. In Elridge v. Richardson, 3 U. C. Q. B. 149, it was held that in an action on the common counts for goods bargained and sold, the plaintiff must show a certain price agreed upon.]

tutes. (1) And it was a subject of long contest among the earlier jurisconsults whether the necessity for a certain price did not render invalid an agreement that the price should be fixed by a third person; but Justinian put an end to the question by positive legislation " Alioquin si inter aliquos ita convenerit, ut quanti Titius rem æstimaverit tanti sit empta, inter veteres satis abundeque hoc dubitabatur sive constat venditio, sive non. Sed nostra decisio ita hoc constituit, ut quotiens sic composita sit venditio, quanti ille æstimaverit, sub hac conditione staret contractus; ut si quidem ipse qui nominatus est pretium definierit, omnimodo secundum ejus æstimationem et pretium persolvatur et res tradatur, et venditio ad effectum perducatur, emptore quidem ex empto actione, venditore ex vendito agente. Sin autem ille qui nominatus est, vel noluerit vel non potuerit pretium definire, tunc pro nihilo esse venditionem quasi nullo pretio statuto. Quod jus, cum in venditionibus nobis placuit, non est absurdum et in locationibus et conductionibus trahere." () These rules have been adopted into the Code Napoleon. Art. 1591: "Le prix de la vente doit être déterminé et désigné par les parties." 1592: "Il peut cependant être laissé à l'arbitrage d'un tiers; si le tiers ne veut ou ne peut faire l'estimation, il n'y a point de vente."

(1) Lib. iii. tit. xxiii. s. 1.

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§ 90. THE common law which recognized the validity of verbal contracts of sale of chattels, for any amount, and how- History of ever proven, was greatly modified by the statute of 29 the tatute. Charles 2, c. 3. This celebrated enactment, familiarly known as the "Statute of Frauds," is now in force not only in England and most of our colonies, but exists, with some slight variations, in almost every state of the American Union. Its history was but imperfectly known till the year 1823, when Lord Eldon gave to Mr. Swanston, the reporter of his decisions, the MSS. of Lord Nottingham, (a) among which was his lordship's report of the case of Ash v. Abdy, (b) in which he said, on the 13th June, 1678, less than

83.

(a) See note to Crowley's case, 2 Swans.

(b) 3 Swans. 664, Appendix. In North's Life of Lord Keeper Guilford, vol. i. p. 108, he states of his lordship: "He had a great hand in the statute of frauds and perjuries, of which the Lord Nottingham said that every line was worth a subsidy. But at that time the Lord Chief Justice Hale had the preeminence, and was chief in the fixing of that law, although the

urging part lay upon him, and I have reason to think it had the first spring from his lordship's notice." [In Wyndham v. Chetwynd, 1 Burr. 418, Lord Mansfield said: "It has been said that this act of 29 C. 2, c. 3, was drawn by Ld. Ch. J. Hale.' But this is scarce probable. It was not passed till after his death; and it was brought in in the common way, and not upon any reference to the judges."]

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