CHAPTER XVII.

TRANSFER OF PROPERTY BY SALE.

Definition of a Sale-Conditional Sales-To Be Returned if Not Satisfactory-Condition as to Kind-Condi tions in Favor of Seller-Sale" With All Faults"— Sales "on Installments"-Warranties-Consideration for a Warranty-Care Necessary in Taking a Warranty Warranty Should Be Exact-Implied Warranties That Food is Fit for ConsumptionSeparation and Completion of Goods Necessary to a Sale-Delivery Necessary to a Sale-As to Creditors or Purchasers-Seller's Lien for Purchase Money— Seller's Right of Stoppage in Transitu.

The absolute transfer of the entire title to personal property, when made by the act of the parties, and when not a gift, is effected by means of a sale. A similar transfer of title to real property is called a conveyance. A conveyance is usually a sale, but it is necessarily attended with more formalities than in an ordinary sale of personal property, the possession of which may be actually transferred. The mere possession of personal property creates a legal presumption that its possessor is its owner, but there is no such presumption that the occupant of a house is its owner.

The sale of personal property will be first considered, and later the conveyance of real property.

Definition of a Sale.

A sale is a transfer of the absolute or general property in a thing for a price in money.'

No one can give a good title to that which he does not own; therefore a thief cannot give a title to prop erty which he has stolen, and the real owner may take immediate possession of his own, in whatever hands he may find it. (An exception to this rule exists in the case of a promissory note or bill of exchange, stolen after original delivery, and coming into the hands of a bona fide holder for value. [See Chapter 12.]) Of course the owner must be able to prove that the property is his, in order to claim it, and this is often difficult, and sometimes impossible to do, especially when it has no distinguishing characteristics, as in the case of money upon which no private mark has been put.

When no especial arrangements are made, there is a legal presumption that every sale is to be consummated at once by delivery of the property and payment of the price. If there is neither delivery nor payment, and the parties part without any further agreement, there is no sale, and neither party is bound, unless it can be shown that it was understood that time was to be given within which the bargain might be consummated.

Conditional Sales.

Very many sales are made on some condition, and such condition may be in favor of the buyer; as for example, that the property may be returned if it does not prove satisfactory. This condition is often implied where there is a fixed and general custom of the kind in the neighborhood or at the particular establishment where the sale is made.

If any time is fixed for the trial, the goods must be returned within the time, or else the sale becomes absolute. If no time is fixed, a reasonable time, considering all the facts of the case, is allowed. If the goods are not satisfactory, and before the time expires they are ruined or injured without fault or negligence of the buyer, the loss is on the seller, for no title has passed to the buyer. If lost by the buyer's fault, he must make it good to the seller.

Condition as to Kind.

Conditions are also often made concerning the kind or character of the thing bought. The condition is always implied that the thing delivered shall be substantially the thing bought, but there is no implied condition, or warranty, of the quality of the article, and it is often very difficult to tell whether the failure of the article delivered to correspond with the article sold, is one of kind or one of quality.

In Massachusetts, it has been held that the buyer may decide whether or not the goods are satisfactory. In Vermont the test is whether or not a reasonable man would be satisfied. Decisions in each state settle the law therein on the subject.

Conditions in Favor of the Seller.

The condition may be in favor of the seller, as for example, that the article sold shall be taken "with all faults;" or that the title shall remain in the seller until the entire price is paid by the buyer.

Sales" on Installments."

This latter condition is very often imposed by sellers of household goods, pianos, sewing machines, etc.,

on installments, and is often very much indeed in favor of the seller; for not only can he reclaim the property from the buyer if the payment of the last small installment is not promptly made, but he can even reclaim it from innocent third persons to whom the buyer may have sold it, for the latter not yet having gained the title to the property, of course cannot pass it to any other. Neither have the buyer's creditors any claim on such property.

Where, therefore, articles are bought "on the installment plan," it is greatly to the buyer's advantage to make an arrangement by which the title goes to him at once, he giving a mortgage back for the unpaid purchase money; for in such a case, the title is in him from the start. Dealers are generally very shrewd in this matter, however, and insist on making a conditional sale, retaining the title to the property; often, indeed, expressing the contract in the form of a temporary lease of the article, the sale to take place and title to pass in the future, when a certain sum shall have been paid for it, as rent or otherwise.

In Massachusetts, a statute was recently passed, somewhat favorable to the purchaser in such cases; it being provided that when a sale of personal property is made on the condition that the title to the property sold shall not pass until the price is paid in full, and the seller takes from the purchaser possession of the property for failure to comply with such condition, the purchaser shall have the right, at any time within fifteen days after such taking, to redeem the property by paying to the seller the full amount of the price then unpaid, together with interest and all lawful charges and expenses due to the seller.

Warranties.

Sales are often accompanied by warranties guaranteeing the kind, quality, condition or other characteristic of the thing sold.

A warranty is an assurance by the seller to the buyer that some particular state of facts exists, or does not exist, in the thing sold.

If the warranty is false, the buyer may disaffirm the sale, and refuse to take the goods when they are delivered; or he may return them and reclaim his money if already paid; or he may affirm the sale, keep the goods, and bring suit for damages for breach of warranty.

Fraud is not necessarily an element of a breach of warranty, for if the seller really believes that he is telling the truth, he is not thereby relieved from his responsibility in the matter.

A seller is bound to know the truth of his warranty, and if he is ignorant thereof, the loss is his own. He should not have given a warranty in such a case.

Consideration for a Warranty.

If the warranty is made substantially at the same time as the sale, no extra consideration is necessary, it being a part of the main contract; but if it was given before the negotiations began, or after they terminated, it is a separate contract, requiring a separate consideration, without which it is valueless.

Care in Taking a Warranty.

It would always be well to remember this when taking a warranty on goods. Do not first say, “I will take it," and then say, "Will you warrant it?" Reverse the order of your dealings.

It is always well, too, to have the warranty in writ