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4. Corresponding letters, sent with copies from the letter-book of the correspondent, or in some cases silence, is good evidence in sale.(2)

5. Merchants' books are admissible proofs, when kept with regularity, and fortified by the person's oath.(y)

Proof of Sale by the Law of Holland.

By the law of Holland, the proof of that consent by which the sale is completed, may be by parole evidence of two witnesses, or of one witness fortified by corroborating circumstances.(2)

In the new commercial code of Holland,(a) no alteration appears to be made on the principles and rules of the former jurisprudence of that country.

* Proof of Sale as settled by Brokers, Travelling Agents, or Mer

*[*72] cantile Factors.

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BROKERS.—In the great commercial cities, sale is most commonly negotiated and settled by brokers, who make it their business to collect useful information as to prices and demand and supply in the market, and who act as neutral agents, closing the contract by bought and sold notes sent to either party.

These notes bear the essential terms of the bargain, the bought note being sent to the seller, the sold note to the buyer, and an entry being made in the broker's book in terms conformable..

It was at one time held in England, that the proper evidence of the contract was the entry in the broker's book, and that the notes sent to the parties were but transcripts ;(6) but it is now settled, that, conformably to the statute of frauds, the note or memorandum to bind the person to be charged is the bought note sent to the seller, and the sold note sent to the buyer, each being bound by such note signed by the broker as his agent.(c)

It was also questioned whether, when a broker had settled a sale and sent the notes to the parties, he was to be held the agent of both or only *2 of one. But *that point is now also settled, and a broker who set- L' tles the bargain is held as agent for both parties, with whichsoever of them his employment first begins.(d).

But although the bought and sold notes sent to the parties are the proper evidence of the contract, if it should happen that there were no bought and sold notes, the entry in the broker's book, signed by him, would be held as the contract.(e) .

If the bought and sold notes sent to the parties differ in any material point, the contract is void, the parties not being at one as to the essentials ; but a mere clerical error, or even a mistake in the name if productive of no loss, would not seem to invalidato the sale. (f) (2) Code de Commerce, Art. 109.

(y) Ibid. Art. 12. (2) Van Leeuwen, Com. Roman-Dutch Law. (a) Code de Commerce Hollandois.

(b) Heyman v. Neale, 1809 ; 2 Camp. 337. Grant v. Fletcher, 1826; 5 Barn. and Cress. 436.

(c) Thornton v. Meux, 1827; 1 Mood. and Mal. 43. See Cumming v. Roebuck, 1816; Holt, 172. Goom v. Aflalo, 1826; 6 Barn. and Cress. 117.

(d) Rucker v. Caimmeyer, 1794; 1 Espin. 105. Heyman v. Neale, 1809; 2 Camp. 337. (e) Grant v. Fletcher, 1826; 5 Barn. and Cress. 436.

) Mitchell v. Lapage, 1816; Holt, 253; 1 Bell's Illus. p. 6.

Many of the difficulties which have arisen on these bought and sold notes depend on the peculiar rules of the statute of frauds in England; under which it is required that there shall be a written note of the contract signed by the party to be charged, or by one lawfully authorized to act for him. But it may be doubted whether in Scotland a bargain settled by a broker, entered in his book, and a note sent to each party, would not make an effectual sale though not signed by either the broker or the party.

RIDERS OR TRAVELLING AGENTS.—These persons are employed in the business of travelling round to the customers of dealers, with authority to receive payment of what may be due to their employers, and to take orders

**1 for the goods in which they deal. Those orders, *written in the L "* J book of the travelling agent and signed by the party to be charged will form a sufficient proof in England or America under the statute of frauds to bind the bargain, the agent being authorized to use the name of his employer as required by those acts.

If the bargain be for goods of a value under £10 in England, or 50 dollars in America, the bargain will be sufficiently proved by parole evidence. In France, Scotland, and Holland, the agent duly authorized may make bargains for his employer, provable by parole evidence, to any amount.

In all these countries it is held unnecessary to give evidence of the agent's authority in writing. .

MERCANTILE Factors are, by the general authority vested in them by the possession of the goods of the principal, authorized to sell, or even to pledge, for money advanced. This has long been settled as the law of Scotland and of most of the other countries of Europe. It was held otherwise in England, till in consequence of an inquiry by a committee of the House of Commons into the laws of different commercial nations in this respect, it was settled by the 6th of George IV. c. 94, §.2. By sections 2 and 4, persons in possession as factors or agents of goods intrusted to them, or consigned, or in possession of the bill of lading, dock-warrant, warehouse-keeper's certificate, or other documents of property, shall be deemed the true owners, so far as to give validity to any contract by them made for the sale or disposition of the goods, or any part of them,(g) provided the buyer has not from c e the documents, *or otherwise, knowledge that the seller has no [*70 J authority to dispose of the goods.(h)

Conclusion of the View of the Law of Evidence of Sale. The result as to the law of evidence of the contract of sale may thus be stated :

1. In England, Scotland, France, Holland, and America, writing is indispensable in the sale of ships, of copyright, and of patents for invention, and it is necessary also in England and Scotland, where goods are to be transferred while in bond, if they are warehoused by the importer and seller.

2. In the cases where writing is not thus indispensable, or made indispensable by the agreement of the parties, it still is necessary by the law of England and America, in sales above the value of £10 in the 'one country, or

(g) Taylor v. Kymer, 1832 ; 3 Barn. and Ad. 320. Taylor v. Trueman, 1830; 1 Mood. and Mal. 457.

(h) See Evans v. Truman, 1831 ; 2 Barn, and Ad. 886; 1 M. and Rob. 10. See also Monk v. Whitenbury, 1831; 2 Barn. and Ad. 484; 1 Bell's Illus. p. 163 and p. 463.

50 dollars in the other, unless there be part delivery and acceptance, or part payment of the price, or earnest to bind the bargain.

3. In the cases of part delivery, part payment, or earnest, parole evidence is admitted in England and America, while in Scotland, France, and Holland, it is admitted in all cases where not expressly excluded by agreement of the parties.

4. Where written evidence is relied on by the parties, or required by the law, it is, in all the countries mentioned, requisite that it shall be signed by the party to be charged or by his agent, authorized either *in writing or otherwise ; but in England, it is held sufficient that the name..." of the party, written by himself, or authenticated by him, shall appear in some part of the writing.

5. Where the subscription is denied, it must be proved in England, America, and France, by the person founding on it. In Scotland and Holland, the onus probandi is laid on the party denying the subscription.

6. Where the authenticity of the subscription is in question, proof by comparison of handwriting is rejected in England and America, but to a certain extent admitted in France, as an auxiliary proof of authenticity, and in Scotland as auxiliary in support of an objection to the writing.

7. Where writing is necessary or relied on by the parties, the instrument or note must contain all the essential parts of the agreement, parole evidence being incompetent to supply the want of any of them.

8. And, finally, it may be stated as a concluding proposition, that in all commercial nations the sale is received as effectually proved by such evidence as the law of the country where it is entered into holds to be sufficient.

*CHAPTER IV.

[*97]

THE MUTUAL OBLIGATIONS OF THE SELLER AND BUYER.

ACCORDING to the principles of universal jurisprudence, as recognised in the Roman law, and substantially followed by all commercial nations, the reciprocal obligations of the parties in the contract of sale are

1. On the part of the seller to deliver, as in the full right of ownership, the specific subject sold, or if the commodity be indefinite, an article which shall fairly answer the description, or if the sale be executory, the article to be provided or prepared according to agreement; to protect or indemnify the buyer against eviction or loss of the subject ; and to insure to him those qualities, or that freedom from fault, which, either by express or implied warranty, he stands engaged to make good.

2. On the part of the buyer, to receive the thing so agreed on; and to pay the price in the way, and at the time, expressed or implied.

These are obligations which may be mutual, simultaneous, and concurrent; or they may be performable at different times. This will depend on the agreement of the parties, or the obvious nature and indication of the contract.

The party who demands or sues for performance *must, as part of L " - his title, shew that he is ready and able to perform his stipulated part, or that it has already been performed.

If the contract be simple, without any stipulation as to time or place, or condition, the obligations are reciprocal, and the performance concomitant ;

-the seller may demand the price on shewing that he is ready to make delivery ; and the buyer may demand delivery on shewing his readiness to pay the price.

If the sale be on credit, the buyer may demand delivery, provided no alteration have taken place in his credit.

If the price is to be paid down, and the commodity delivered at a distant place on a certain day, the buyer can demand delivery only on shewing that he has performed the condition precedent of payment.

There are (particularly in the law of England) certain technicalities of pleading which are too minute to be easily understood by those not familiar with that nice and intricate learning, but substantially the same rules which have now been stated, seem to prevail universally in all commercial nations, and are laid down by the institutional writers of all countries.(a)

It will be proper, then, to consider in their order,—1st, The obligations of the seller; 2dly, Those of the buyer.

I. Obligations of the Seller.

The obligations of the seller are-1. To deliver the thing sold with the 20 right of ownership; and, 2. To *warrant it to the buyer in respect 40 of title and quality. These obligations are either express or implied.

1. Delivery.—The primary obligation of the seller is to deliver the thing sold, with such title and right of ownership as to confer the property on the buyer. To this it is necessary that the seller shall have the full right of disposal of the thing, either as owner, or as expressly or impliedly authorized by him; that the thing shall be properly separated and prepared for delivery, and either tendered to the buyer, or placed so as to enable him to take it at his pleasure ; and that it shall be accompanied by all necessary permits and protections, free of all claims for duties, warehouse rent, and burdens of debt.

Where the sale is by the owner, the only question that can be raised by the buyer objecting to proceed under a concluded contract, will rest on the warrandice in case of pretensions by other parties to the property of the goods.

But questions of difficulty have arisen where the person by whom the goods were sold was either not proprietor of those goods; or the goods, though his, were burdened with rights in favour of other persons; and the law, as established in different countries, has recognised several distinctions.

In England, although the right of disposal is in the general case uncontrolledly in the owner, yet if judgment has been obtained against him for a debt or damages, and the writ of execution has been delivered to the Sheriff, the property of his goods is bound to answer the debt, and no sale can effect

(a) Domat, liv. 1, tit. 2, sec. 2, No. 14, et seq; Pothier Cont. de Vente, No. 50. 52; Toullier, vol. 8, p. 226; 1 Stair, 17, 18-19; 2 Blacks. Com. 448; 2 Kent, Com. 492.

ually be made of them.(6) But a valid sale may still be made after *such writ is in the hands of the Sheriff, provided it be made in Lod market overt.(0)

A sale may also be effectually made in certain cases, although the seller is not proprietor of the goods sold. If the sale be made in market overt, it is good, although the person who sells should have stolen the goods or found them, provided he be in the apparently lawful possession of them.(d) Market overt is held in London to be every shop in which goods are exposed for public sale of a kind in which the shopkeeper professes to trade.(e) In the country, a market is only that which is held in the market-place, and on the proper market-day appointed for the sale of such goods.

In Scotland, the goods of a tenant are hypothecated to his landlord for rent, and this right continues for three months after the term at which the rent is due; and an effectual sale cannot be made of them unless such sale take place in open market, and the goods be then sold in bulk, and not by sample.(f)

Sale in open market does not secure the purchaser against a claim of restitution by the true owner, where the goods have been sold by one who has stolen them.(8)

Mercantile factors and agents having possession of the goods intrusted to them by their principals, are *entitled to sell them, or even to pledge r *e them, for advances.(h)

The rules relative to delivery have effect either in an action by the seller for payment of the price, or in an action by the buyer for performance. In the former, the question is, What is the seller bound to show as to delivery or tender of the goods, in seeking payment of the price or damage for non-fulfilment of the contract? In the latter, the question is, what the buyer is entitled to insist for, when he brings his action for the delivery of the goods?

In either of these respects in which the seller's duties may come into question, the delivery must be offered, or made, according to the stipulations of the contract, or the nature of the commodity ; and either to the buyer himself, or to one duly authorized by him, or to a carrier, ship-master, wharfinger, or other such person as the parties may have agreed on; or in such way as, by the implied contract, may be pointed out; or, if the goods are too bulky, by delivery of the key of the repository in which they are, or by an order or notice to the custodier or keeper of the warehouse in which they are deposited, or by indorsement of bill of lading, dock-warrant, or other instrument by which, according to the custom of merchants, goods in that situation are transferable.

The question, What shall be the effect of the several acts of delivery, or of leaving them incomplete as to the right of stopping in transitu, will be con

(6) 2 Blackst. Com. 447.

(c) Eq. Cases Ad. 381. id 2 Blackst. Com. 449.

(e) 2 Blackst. Com. 449; Wilkinson v. King, 2 Camp. 335; 1 Bell's Illus. p. 158 and p. 326. See, however, the special regulations of the stat. 7th and 8th Geo. IV. c. 29, $ 57, as to goods sold by convicted felons.

(f) Dunlop v. Earl of Dalhousie, 27th Feb. 1828. Affirmed by the House of Lords, 7th Dec. 1830 ; 4 W. and S. 420.

(g) Henderson v. Gibson, June 17, 1806; Mor. Moveables, Ap. 1. See this and other cases cited, 1 Bell's Illus. p. 417-18.

(h) See above, p. 75.

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