OBJECTS OF SALE. SECTION 13. CORPOREAL PERSONAL PROPERTY. Goods which have a tangible physical existence, such as to render the goods themselves capable of delivery, are styled corporeal. When the term goods is used, it ordinarily includes all corporeal personal property, except money. This term may also include that which is evidence of certain property rights. There is authority for the holding, that negotiable paper is included in the term merchandise. Some few authorities hold, however, the term "goods" does not include promissory notes. Goods, wares and merchandise by some decisions do not include shares of stock. Growing crops, fructus industriales are considered personal property, and fructus naturales are considered, at least until severed from the soil, as part of the real estate and not personal property. The word merchandise includes in general, objects of traffic and commerce." SECTION 14. INCORPOREAL PERSONAL PROPERTY. 3 5 The property sold need not of necessity have a corporeal existence; for instance, the good will of partnership may be sold. It has also been held that knowledge and existence of an oil well may be the 1 Spooner vs. Holmes, 102 Mass., 507; Jones vs. Nellis, 41 Ill., Banta vs. Chicago, 172 Ill., 204; Crawford vs. Schmitz, 139 Ill., • Webbs vs. R. R. Co., 77 Md., 92; Evans vs. Roberts, 5 B. & C., 829. " Boardman vs. Cutter, 128 Mass., 388. Barber vs. Com. Mutual L. Ins. 9 subject of a contract of sale. Goods, wares and merchandise, according to Massachusetts decision, do not include mere rights which have not a visible and palpable form, such as a mere debt,10 or shares of stock in a company not formed." But it is not essential that the property to be the subject of sale should be corporeal; it may be incorporeal. In New Jersey goods, wares, and merchandise include everything, in short, not comprehended in the terms lands, tenements and hereditaments.12 In Georgia, the words goods, wares, and merchandise are held to include accounts.13 A physician in a country village being about to move elsewhere proposed to another physician to come and take his place, and in consideration of the payment of $500 by the newcomer the retiring physician agreed to recommend the newcomer to his patrons and to use his influence in his favor. The Court held in an action to recover the money, that the business of the plaintiff was not such a personal trust and confidence, that it would not be the subject of sale. The route of a newspaper carrier may be the subject of sale.15 An uncertain hope may be sold.18 But a contract to deliver goods not in existence at the time, is not a sale." So it has been held that there can be no complete sale of a crop not yet planted.' 18 14 SECTION 15. AFTER ACQUIRED PROPERTY. It is the general rule that even though the title to the property is still to be acquired, one may sell or Reed vs. Golden, 28 Kans., 632. 10 N. Y. Biscuit Co. vs. Cambridge, 118 Mass., 279. 11 Mecham vs. Sharp, 151 Mass., 564. 12 Greenwood vs. Law, 55 N. J. L., 168. 13 Walker vs. Supple, 54 Ga., 178. 14 Hoyt vs. Hally, 12 Am. Rep. 390, 39 Conn., 326. 15 Hathaway vs. Bennett, 10 N. Y. (6 Seld), 108, 61 Am. Dec., 739. 18 Sedell vs. McCoys Ex'rs., 15 La., 340. 17 Low vs. Andrews Fed. Cas. No. 8559. 18 Huntington vs. Chisholm, 61 Ga., 270, offer for sale, the goods still to be acquired, if the present purchase of the goods is hoped for, or expected by such a vendor.19 Farm and dairy products, thereafter to arise out of a demised farm, and stock thereon may be the subject of a sale,20 and it is not necessary in case of a sale, or purchase for future delivery, that the property should actually be on hand at the time.21 Any one, in general, has a right to sell any property they possess, if they are not an incompetent. The power of disposition of one's property is incidental to ownership, and it is the policy of the common law not to restrain it.22 But it is quite necessary that there be in existence the thing that is to be sold, it is the general rule that if the subject matter is not in existence, there is no sale. But if a thing has a potential existence, as for example, the natural production or expected increase of property then belonging to the seller, it may be the subject of a sale. As a general rule, any person may sell or offer for sale, goods that he does not then own but which he hopes or expects to acquire. But if the property has only a potential existence and is to be afterwards acquired, then it can only be the subject of a conditional sale,25 and as against creditors the title remains in the original owner and subject to the execution, at least until actually delivered over to the person claiming the interest. 23 SECTION 16. IN GENERAL. 24 In treating of the subject matter of the sale, that is, the thing to be sold, it must be kept in mind that it 19 Wamsley vs. Horton, 77 Hun. (N. Y.), 317; Ajello vs. Worsley, 1 Ch., 274. 20 Van Hoozer vs. Corey, 34 Barb., 9. "Bartlett vs. Smith (C. C.), 13 Fed., 263. 22 Insurance Bank of Columbus vs. Bank of United States, 4 Clark, 125. 23 Strickland vs. Traner, 7 Exch., 208; Dexter vs. Norton, 47 N. Y., 62. 24 Forsyth Mfg. Co. vs. Castlen, 112 Ga., 199. 25 Brett vs. Carter, 2 Lowell (U. S.), is quite necessary that the vendor have title, as the vendor in any event only is able to transfer whatever interest or title he himself possesses. The only exception to this well known rule is in the transferring of money or negotiable paper, where the rule of the law merchant applies. Further exception in England is the sale in market overt, a doctrine which has never been applied in the United States and which is not a part of our law. Where the title of the vendor is a voidable one only, a purchaser who buys in good faith and for value without notice of the existing defect will take a good title. Outside of the city of London, market overts exist by grant or prescription, giving the right to sales in the open market on special days, under this doctrine these sales are free from the general rule that if the vendor has not the title, the real owner may reclaim his property where he finds it. In London all shops are markets overt for the purpose of their own trade.20 26 Wilkinson vs. Rex., 2 Camp., 335. CONDITIONS AND WARRANTIES. SECTION 17. DEFINITION OF WARRANTY. A warranty is defined as the collateral agreement, that is annexed to the agreement transferring the property right in the thing sold, by which warranty, the seller vouches for, either expressly or impliedly, the title, the condition and the quality of the subject matter of the sale. An express warranty is an express or positive declaration or assertion made by the seller, relating to some fact respecting the thing sold, which statement may be taken by the buyer as true, and one on which there is an obligation on which he may hold the vendor. A representation is the statement that precedes the agreement of sale, on which the contract of sale is founded, and if the representation is relied on, it is the inducement of the contract. A false representation may, if it amounts to fraud, give the injured party the right to rescind the contract itself, or hold the other party in damages for its breach. A warranty is likewise to be distinguished from condition. If there is a condition which forms the basis of the contract, and the condition be broken, the contract is at an end. A breach of warranty does not bring the contract to an end; it merely gives a right in damages for the breach. A warranty may arise without the vendor of goods using the word warranty, no particular words are necessary to bind the vendor, but any language used from which a warranty might be inferred is sufficient.1 1 Stone vs. Denny, 4 Metc. (Mass.), 151. |