deceased principal, even though the third party dealing with the agent has no notice of the death.

6. By the principal or agent becoming of unsound mind.

7. By the bankruptcy of the principal.

§ 133. Authorities.—Sir William Anson's work on the Law of Contracts contains the leading principles relating to agency. Principal and Agent, by Mr. W. Evans, discusses the subject in detail.

CHAPTER III

THE SALE OF GOODS

§ 134. Definition.-A contract of sale is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called price, which the latter pays or agrees to pay. The object of the contract is to transfer the ownership or property in the goods from the seller to the buyer. By 66 property" " is meant the general property in the goods, as distinguished from a special right such as possession. The owner of an article may, for instance, have given it in pledge, but that does not prevent him selling his "property" in the article, i.e. the right to redeem the pledge, and such sale will not affect the special right of the pawnbroker. Again, a merchant may have borrowed money from his bankers on the security of goods: this will not prevent him from selling the goods, though the buyer will, as a rule, acquire the goods subject to the rights of the bank.

§ 135. A Sale and an Agreement for Sale.—It is important to note the distinction drawn in the above definition between a "transfer" and an "agreement to transfer." The former is often called a "sale," and the latter an "agreement to sell." A contract, as a rule, leaves one or both of the parties to it under an obligation or a number of obligations to do or perform something. For instance, in the wholesale market where transactions are carried out on a large scale by means of credit, a purchase usually leaves the seller under the obligation to deliver the goods, and the buyer under the obligation to pay the price at the

time and place agreed upon. Here at the moment of time the contract is made performance is on both sides postponed to a future date, and the distinction between the making of the contract and its performance is very marked. The contract is an 66 agreement to sell"; but in the retail market, where articles are often sold for cash and delivery is at once made, the formation of the contract and its performance take place practically at the same moment. For instance, a person enters a shop, purchases a pound of tea, pays for it and takes it away: here the contract is performed at the same time as it is entered into. The contract is a "sale." The importance of the distinction between a "sale" and an "agreement to sell" lies in the fact that the former does, and the latter does not, transfer the property from the vendor to the buyer. In a "sale" the property passes at once, in an "agreement for sale" the goods remain the property of the vendor until the time for delivery has arrived, or the conditions subject to which the property is to pass to the purchaser are fulfilled. § 136. The Price. The consideration given by the buyer to the seller is called "price," and price always implies money. If goods be given without any consideration, there is a "gift"; if goods be given in exchange for goods, there is a "barter." As a rule, the price is fixed by the contract, but the parties may leave it to subsequent arrangement, a course not often adopted, as it is likely to lead to litigation.

It is not unusual in certain cases for the parties where they cannot fix the price to leave it to be fixed in an agreed manner. Such an arrangement is legal. The usual manner adopted is to refer the price to valuers, and the price so fixed is as much a part of the contract as if it had been inserted in it.

Where none of the above methods are adopted for fixing the price, the buyer must pay a reasonable price. A reasonable price means "such a price as the jury upon

the trial of the cause shall under all the circumstances decide to be reasonable. This price may or may not agree with the current price of the commodity." An example

may be given of a contract of sale where no price was fixed. A. ordered B. to build a new carriage with certain appointments, the whole to be ready by a certain date. The carriage was built, but on B. sending in his bill for £480, A. refused to take the carriage or to pay for it, alleging amongst other things that the omission of the price from the order invalidated the contract. The court held the contract was good, inasmuch as where the price was left uncertain, the law implied that a reasonable price would be paid.

§ 137. The Form of the Contract of Sale.-Up to the reign of Charles II. no special formalities were required as regards a sale of goods. The contract might have been oral or written, or partly oral and partly written. But in the twenty-ninth year of the reign of that sovereign, the celebrated statute called the Statute of Frauds was passed, and by the seventeenth section an important change was introduced as regards the sale of goods of the value of £10 and upwards. We have therefore to consider the form of the contract where the value of the goods is (1) below £10, (2) £10 and upwards.

(1) Goods below £10 in value.—A contract for the sale of goods below £10 in value may be

I. Oral.

2. Written.

5. Implied from the conduct of the parties.

A deed is rarely used to effect a contract for the sale of moveable property, at least where it is tangible. In the case of rights of action, such as shares in companies, a deed is usually necessary. Orders for goods are often given and accepted by letters; here the contract is to be gathered from the whole correspondence. Oral contracts, especially in small retail transactions, are the most usual. The moment the seller and the buyer agree as to what is to be sold and the price, there is contract of sale. The question as to when the ownership of the thing sold will pass to the purchaser will be treated subsequently (§ 155).

§ 138. (2) Goods of the Value of £10 and upwards.— Speaking generally, the effect of the Statute of Frauds upon contracts for the sale of goods of the value of £10 and upwards, is to require over and above the ordinary requisites of a contract the fulfilment of one of the three following provisions: 1

(a) The acceptance by the buyer of part of the goods sold, and actual receipt of the same.

(b) The giving of something in earnest to bind the bargain or in part payment.

(c) The making of a note or memorandum in writing of the contract signed by the party to be charged, or his duly authorised agent.

§ 139. (a) Acceptance and Receipt. The buyer must not merely accept part of the goods, but must also receive them, and the contract will not be good unless he does both. "The acceptance of part of the goods,” said Lord Blackburn,2 "is an assent by the buyer meant to be final that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract. So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfilment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods, assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them. The question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts.

1 The words of the section are: " 'And be it enacted that from and after the four-and-twentieth day of June [1677], no contract for the sale of any goods, wares, or merchandises for the value of £10 sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised."

2 Blackburn on Sale, 2nd ed. p. 16.