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the contract, he cannot be permitted to recover the money back; and the rule that potior est conditio defendentis will apply.a If, however, the money be not paid over, but remains, in its transit, in the hands of the intermediate stakeholders, the law will not permit a third person, who is thus incidentally connected with the transaction, to set up the claim of illegality in the contract between the principal parties. An agent cannot shelter himself from paying over the money by such a plea, and the money advanced may bə reclaimed.b When the transaction is of such a nature that the good part of the consideration can be separated from that which is bad, the courts will make the distinction ; for "the common law doth divide

according to common reason; and having made * 468 that void that is *against law, lets the rest stand.”

The general and more liberal principle now is, that where any matter, void even by statute, be mixed up with good matter, which is entirely independent of it, the good part shall stand, and the rest be held void ;d though if the part which is good depends upon that which is bad, the whole instrument is void ; and so I take the rule to be if any part of the consideration be malum in se, or the good and the void consideration be so mixed, or the contract so entire, that there can be no apportionment.f

• Howson v. Hancock, 8 Term Rep. 575. Burt v. Place, 6 Cowen's Rep. 431.

b Cotton v. Thurland, 5 Term Rep. 405. Smith v. Bickmore, 4 Taunt. Rep. 474. Vischer v. Yates, 11 Johns. Rep. 23. M‘Alister v. Hoffman, 16 Serg. f Rawle, 147. Hartleton v. Jackson, 8 Barnu. of Cress. 221.

• 14 Hen. VIII. ch. 15. Hob. Rep. 14. Pigot's case, 11 Co. 27. b. Greenwood v. Bishop of London, 5 Taunt. Rep. 727. Lord Stowell said, that the admiralty courts adopt this rational rule of the common law, in respect to maritime contracts. The Nelson, 1 Hagg. Adm. Rep. 176.

1 Mouys v. Leake, 8 Term Rep. 411. Kerrison v. Cole, 8 East's Rep. 231. Howe v. Synge, 15 East's Rep. 440. Doe v. Pitcher, 6 Taunt. Rep. 359. Wigg v. Shuttleworth, 13 East's Rep. 87.

Best, J., in Biddle v. Leeder, 1 B. Cress. 327.

Scott v. Gilmore, 3 Taunt. Rep. 226. Lord Kenyon, in Mouys v. Leake, 8 Term Rep. 411. Hinde v. Chamberlin, 6 N. H. Rep. 225. Frazier v Thompson, 2 Watts f. Serg. 235.

IV. Of the contract of sale.

A sale is a contract for the transfer of property from one person to another, for a valuable consideration ja and three things are requisite to its validity, viz. the thing sold, which is the object of the contract, the price, and the consent of the contracting parties.b

(1.) The thing sold must have an actual or potential existence, and be specific or identified, and capable of

ance.

- Sir William Blackstone defines a sale to be “a transmutation of property from one man to another in consideration of some price or recompense in value,” 2 Comm. 446. Ross in his Treatise on the Law of Pur. chasers and Vendors, adopts the same definition, and I take this occasion to recommend that work of Mr. Ross as a learned and faithful perform

It is republished in this country as part of the 12th volume of the Law Library, edited by Thomas J. Wharton, Esq., a most valuable series of publications to the profession.

Pothier, Traité du Contrat de Vente, n. 3. Bell's Prin. L. S. sec. 85. 90–92.

c It is sufficient that the thing contracted for has a potential existence, and a single hope or expectation of means founded on a right in esse, may be the object of sale as the next cast of a fisherman's net, or fruits or animals not yet in existence, or the good will of a trade. But a mere possibility or contingency not coupled with any interest in, or growing out of property, as a grant of the wool of the sheep the grantor may thereafter buy, or the expectancy of an heir apparent, is void as a sale. Dig. 18. 1. 8. Pothier, Cont. de Vente, n. 5, 6. Ploud. Rep. 13. a. Grantham v. Hawley, Hob. Rep. 132. Harg. Co. Litt. lib. 1. n. 363, S.C. Robinson v. Mac Donnell, 5 Maule f. Selw. 228. Com. Dig. tit. Grant, D. Careton v. Leighton, 3 Meriv. 667. See infra, vol. iii. 64. See, also, infra, p. 504. A covenant to pay out of future profits of an existing office is good. Clapham v. Moyle, 1 Lev. Rep. 155. Mr. Bell, in his Principles of the Law of Scotland, p. 30, (a work very comprehensive but admirably condensed,) states that the hope of succession may he the subject of sale, but in the case from Merivale, Lord Eldon held, that such an expectancy could not be the subject of assignment or contract. Reversionary interest and expectancies founded on settlements and entailments are the subject of sale, as see post, 475, but a mere hope, where there is no existing right sustaining the expectation, as where the ancestor is seized in fee simple, with a power of alienation and devise, is not the subject of a valid sale. But see post, 475, n. c. A bill or note, or inland bill of exchange is not the subject of sale, unless it be such a security in the hands of the seller, that he could sue on it at maturity. Powell v. Waters, 8 Cowen, 689. Cram v. Hendrick, 7 Wend. 589. Munn v. Commn. Company, 15 Johnson Vol. II.

46

delivery, otherwise, it is not strictly a contract of sale, but a special or executory agreement,& If the subject matter of the sale be in existence, and only constructively in the possession of the seller, as by being in the possession of his agent, or carrier abroad, it is nevertheless a sale, though a conditional or imperfect one, depending on the future actual delivery. But if the article intend.

44. But foreign exchange in the hands of the drawer is a subject of traffic and sale--a commodity bought and sold like merchandize. Bankers'drafts are also existing things in action, and subject to the like traffic. The drawer sells his foreign bill as money or funds abroad. His credit abroad is to the payee equivalent to cash, and the bill of exchange is the instrument of transfer. The commission charge on the transfer is part of the price of the sale and not usurious. Holford v. Blatchford, 2 Sandford's Ch. Rep. 149.

a Rondeau v. Wyatt, 2 H. Blacks. 63. Mucklow v. Mangles, 1 Taunt. Rep. 318. Groves v. Buck, 3 Maule f. Selw. 178.

b Boyd v. Siffkin, 2 Camp. Rep. 326. Withers v. Lyss, 4 Ibid. 237. In the civil law, ownership in the seller at the time of the contract, was not essential to its validity. Dig. 15. 1. 1. 57. Heinecc. Elem. Jur. Secund. Ord. Inst. lib. 3. tit. 24. sec. 906. Pothier, Contrat de Vente, n. 7. In Bryan v. Lewis, 1 Ryan of Moody, 386, Lord Tenderden ruled, that if goods be sold to be delivered at a future day, and the seller has not the goods, nor any contract for them, nor any reasonable expectation of receiving them by consignment, but intends to go into the market and buy them, it was not a valid contract. It was a mere wager on the price of the commodity. This is contrary to the rule at law, as suggested by Lord Chancellor Parker, in Cud v. Rutter, 1 P. Wms. 570. The observation of Lord Tenterden in this case, is said to be a mere dictum and unsupported by any other case. Wells v. Porter, 3 Scott, 141. In this last case in the C. B., it was held that time bargains in foreign funds were not illegal or void at common law, and in Hibblewhite v. McMorine, 5 Meeson f. W., 462, the decision of Lord Tenterden in Bryan v. Lewis was completely overruled. Mr. Bell says that, where the distinction exists between sale as a transfer of property and sale as a contract, as in the civil law, Holland, Scotland, &c., a thing which belongs to another may be the subject of sale, and the seller must make good the contract or answer in damages. But that in England and America, as a sale is a transfer of property, it cannot exist as to property not belonging to the seller at the time. Bell on the Contract of Sale, Edin. 1844, p. 26, 27. In France, by the Code Civil, No. 1617, ou a contract of sale of goods which can be purchased in the market, the seller is bound to fulfil the contract. By the N. Y. Revised Statutes, 3d edit. vol.

ed to be sold has no, existence, there can be no contract of sale. Thus, if A. sells his horse to B., and it turns out that the horse was dead at the time though the fact was unknown to the parties, the contract is necessarily void. So, if A., at New-York, sells to B. his house and lot in Albany, and the house should happen to have been destroyed by fire at the time, and the parties are *equally ignorant of the fact, the foundation of the *469 contract fails, provided the house, and not the ground on which it stood, was the essential inducement to the purchase. The civil law came to the same conclusion on this point. But if the house was only destroyed in part, then if it was destroyed to the value of only half or less, the opinion stated in the civil law is, that the sale would remain good, and the seller would be obliged to allow a rateable diminution of the price. Pothier thinks, however, that in equity the buyer ought not to be bound to any part or modification of the contract, when the inducement to the contract had thus failed; and this would seem to be the reasoning of Papinian,

i. 892, in order to prevent stockjobbing, it is declared that all contracts, written or verbal, for the sale or transfer of stocks are void, unless the party contracting to sell be at the time in the actual possession of the evidence of the debt or interest, or otherwise entitled in his own right or with due authority to sell the same; and all wagers upon the price of stock is void. The English statute of 7 Geo. 2. c. 8, was made to prevent stockjobbing, and which the statuto termed an infamous practice. The discussions in the English courts on this statute have been many and interesting, and the operation of the statute made subject to important distinctions. An agreement to transfer stocks for a valuable consideration to be paid, though the seller was not at the time actually possessed of or entitled to the stock in his own right, has been held not to be within the statute, which only applied to fictitious sales of stocks. Mortimer v. McCallan, 6 Meeson & Welsby, 58. S. C. 7 Id. 20. 9 Id. 636.

Dig. 18. 1. 1. 57. Pothier Cont. de Vente, n. 4. Hitchcock v. Gid. dings, 4 Price's Rep. 135. S. C. Daniel's Exch. Rep. 1. Story's Com. on Eq. Jurisprudence, 157. Allen v. Hammond, 11 Peter's U.S. Rep. 63

b Dig. 18. 1. 57. • Traité du Contrat de Vente, n. 4.

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from another passage in the Pandects, and it is certainly the more just and reasonable doctrine. The Code Napoleonb has settled the French law in favour of the opinion of Pothier, by declaring, that if part of the thing sold be destroyed at the time, it is at the option of the buyer to abandon the sale, or to take the part preserved, on a reasonable abatement of price ; and, I presume, the principles contained in the English and American cases tend to the same conclusion, provided the inducement to the purchase be thereby materially affected.

Where the parties had entered into an agreement for the sale and purchase of an interest in a public house, which was stated to have had eight years and a half to come, and it turned out on examination that the vendor had an interest of only six years in the house Lord Kenyon ruled,c that the buyer had a right to consider the contract at an end, and recover back any money which he had paid in part performance of the agreement for the sale. The buyer had a right to say it was not the inter

est he had agreed to purchase. So, in another *470 case, and upon the same principle, "Lord Eldon

held,d that if A. purchased a horse of B., which was warranted sound, if it turned out that he was unsound, the buyer might keep the horse and bring an ac. tion on his warranty for the difference of the value ; or he might return the horse, and recover back the money paid ; though if he elected to pursue that course, he inust be prompt in rescinding the contract. There are other cases, however, in which it has been held, that it was no defence at law to a suit on a note or bill, that the

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Dig. 18. 1. 58. b No. 1601. • Farrer v. Nightingal, 2 Esp. Rep. 639. a Curtis v. Hannay, 3 Esp. Rep. 82.

Buller, J., 1 Term Rep. 136; and in Compton v. Burn, Esp. Dig. 13. i Morgan v. Richardson, 1 Camp. N. P. Rep. 40, n. Fleming v. Simpson, Ibid. Tye v. Gwynne, 2 lbid. 346.

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