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568. Imperfect sales-Unascertainea price.— Moreover, although the subject-matter of the sale may be ascertained, and identified, and selected, and

that a reconciliation of them is not impossible; see Gilman v. Hill, 36 N. H. 317; Abbott v. Gilchrist, 38 Me. 260; Cason v. Cheely, 6 Ga. 554; Gorham v. Fisher, 30 Vt. 428; Sewali v. Fitch, 8 Cow. 215; Cummings v. Dennett, 26 Me. 397; Dows v. Ross, 23 Wend. 270; Jackson v. Covert, 5 Wend. 139; Courtwright v. Stewart, 19 Barb. 455. In Story on Sales (p. 274, § 260 c.), it is said "that where the labor and service were the essential considerations, as in the case of the manufacture of a thing not in esse, the contract would not be within the statute; where the labor and service were only incidental to a subject matter in esse, the statute would apply." Said Shaw, C. J., in Lamb v. Crafts, 12 Met. 356; "The distinction, we believe, is now well understood. When a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale and not a contract for labor; Otherwise when the article is made pursuant to the agreement;" and see Smith v. New York Central R. R. Co., 4 Keyes, 180; Mixer v. Holworth, 21 Pick. 205; held that in case of an agreement with a workman to put materials together and construct an article for the employer, whether at an agreed price or not, though, in common parlance, it may be called a purchase and sale of the article, to be completed in future, it is not a sale until an actual or constructive delivery and acceptance, and the remedy for not accepting, is on the agreement." See Clark v. Nichols, 107 Mass 47, where an oral agreement to deliver certain timber sawed into a certain shape, was a sale of the timber, and not a contract to manufacture; and see Hight v. Ripley, 19 Me. 137; Fickett v. Swift, 41 Me. 68; Crookshank v. Burrell, 18 Johns. 58; Cummings v. Dennett, 26 Me. 397; Abbott v. Gilchrist. 38 Id. 260; Edwards v. Grand Trunk Railway Co., 48 Id. 379; Pitkin v. Noyes, 48 N. H. 294; Prescott v. Lock, 51 N. H. 98. So a contract to sell all the sheep pelts taken off by the seller, a butcher, between certain months, was held to be a contract for the sale of goods, and not for work and labor. Gilman v. Hill, 36 N. H. 313. In Crookshank v. Burrell, 18 Johns. 58, a contract to make the woodwork of a wagon, was held to be a contract

for labor and services, and not a sale. In Sewall v. Fitch, 8 Cow. 215, a contract for nails of a certain pattern, not then

approved by the purchaser, yet, so long as anything remains to be done, as between the purchaser and vendor, for the purpose of ascertaining the price of the article, the right of property and the risk of loss are not altered. (c) Thus it has been said, "If I sell you all my corn for 12d. a bushel, you may not (c) 2 Wms. Saund. 122, note (m), ed 1871.

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made, was held to be a contract for labor, and not within the statute; and see Robertson v. Vaughan, 5 Sandf. 1. So a contract for flour to be manufactured from wheat; Bronson v. Wiman, 10 Barb. 406; but in Downs v. Ross, a contract for the sale of wheat, then in existence, to be delivered in six days, notwithstanding portions of the same were to be cleaned and threshed, was held to be a contract of sale (Cowen, J., dissenting); 23 Wend. 270. It is believed that the above are sufficient to guide the student to the distinction attempted in these cases; but see also Passaic Mfg. Co. v. Hoffman, 3 Daly, 495: O'Niel v. New York Mining Co., 3 Nev. 141; Gorham v. Fisher, 30 Vt. 428; Mead v. Case, 33 Barb. 202; Gardner v. Joy, 9 Met. 178; Parker v. Schenck, 28 Barb. 38; Cook v. Millard, 5 Lans. 243. Under a contract for supplying labor and materials, no property passes while any thing remains to be done, and while the thing to be manufactured is unfinished or incomplete, unless the contrary be clearly expressed in, or implied by, the terms of the contract; Williams v. Jackman, 16 Gray, 517; Elliot v. Edwards, 6 Vroom, 265; and this rule applies to property already in esse, as well as to property to be manufactured; Halterline v. Rice, 62 Barb. 593. And after the manufacture, the chattel must be accepted by the purchaser before the title will pass; Sandford v. Wiggins Ferry Co., 27 Ind. 522; Merritt v. Johnson, 7 Johns. 473; Gregory v. Stryker, 2 Den. 628; West Jersey R. R. Co. v. Trenton Car Works, 3 Vroom, 517; Middlesex Co. v. Osgood, 4 Gray, 447; Rider v. Kelley, 32 Vt. 268; McIntyre v. Kline, 30 Miss. 361; Andrews v. Durant, 1 Kern. (N. Y.) 35; Blasdell v. Souther, 6 Gray 149, 152; Mixer v. Howarth, 21 Pick. 205; Gamage v. Alexander, 14 Tex. 414; Johnson v. Hunt, 11 Wend. 139; Bennett v. Platt. 9 Pick. 558; Veazie v. Holmes, 40 Me. 69; nor does tender thereof on the part of the manufacturer, pass the title; Moody v. Brown, 34 Me.

1 Post, note 1, at the end of this section.

take it before it is measured, whereby the number of the bushels may be known, and also the certainty of the sum which is to be paid for it, so that before the certainty is known, it can not be adjudged any good contract or agreement." Where a vendor sold the bark stacked at Redbrook at £9 5s. per ton of 21 cwt., to be weighed before delivery, and 8 tons, 14 cwt. of the bark were weighed and delivered; but, before the residue was weighed and the quantity thereof ascertained, a high flood arose and destroyed it, it was held that the right of property in the unweighed residue had not been altered, neither, consequently had the risk of loss. (d) And, where several hundred bales of skins, containing five dozen in each bale, were sold at 57s. 6d. per dozen; and by the usage of trade it was the duty of the seller to count the bales before delivery, to see that each bale contained the number specified, and before any enumeration the skins were destroyed by fire, it was held that the seller must bear the loss.. (e) So, where 1,391 pieces of red pine timber measuring 50,000 feet, more or less, were sold at the rate of 91d. per foot to be measured off before delivery, it was held that, until a measurement had been effected, the sale was not perfect and complete, so as to transfer the ownership and risk. (ƒ)'

So, observes Pothier, "if the sale is of all the merchandise or corn stored in a particular gi anary at so much per thousand weight, or so much a quarter

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the sale is not considered to be perfect, and the things sold are not at the risk of the buyer, so long as they have not been weighed or measured; for up to that time the quantity has not been ascertained, and, the price being determined only by each thousand weight that shall be weighed, or each quarter that shall be measured, there is no ascertained price until the weighing or measuring shall have been accomplished; and the sale, consequently, before that time, is not sufficiently perfected for the risk of the things sold to belong to the buyer; and he ought not to be charged with it until the weighing and measuring have been accomplished." (g)'

But the distinction must be observed between a sale by measure or weight requiring the measuring or weighing to be accomplished for the purpose of determining and fixing the price, and a sale of specific goods in the lump at an ascertained price, accompanied with a representation or warranty of the weight or quantity, where the weighing or measuring is necessary only for the purpose of satisfying the purchaser that he has got the quantity bargained for. (h) The mention of the quantity has no further effect in this case than to oblige the vendor to make good to the purchaser any deficiency that may be found to exist. (¿) Moreover, if it appears by the terms of the contract that it was the intention of the parties that the property should pass to the buyer, it will pass, although the goods have still to be weighed, measured, or

(g) Pothier, Contr. de Vente, No. 309. Dig. lib. 18, tit. 1, lex. 35.

(h) Swanwick v. Sothern, 9 Ad. & E. 900. Gilmour v. Supple, 11 Moore, P. C. 571. Furley v. Bates, 33 L. J.,

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Ex. 43; S. C. nom. Turley v. Bates,
2 H. & C. 200. Kershaw v. Ogden,
3 H. & C. 717; 34 L. J., Ex. 159.
(i) Pothier, Vente, No. 310.

Ante, note 2, §§ 565, 566.

tested, provided the subject-matter of the sale is ascertained and identified; (k) and there may be a complete contract so as to pass the property in the goods, although the price has not been definitely agreed on, (1) or although the goods are still unfinished, (m) or unweighed. (n)

When the quantity is ascertained, the mere omission to add up the total contents according to weight or measure, will not prevent the right of property and the risk from passing to the purchaser. (0) If certain specific cases, bales, or packages of goods are sold in the lump, at the customary and reasonable price paid for such articles, the price is sufficiently ascertained, and the right of property will pass, although no definite sum has been agreed upon, and the time or mode of payment has not been specitied. (p) '

(4) Turley v. Bates, 2 H. & C. 200;
S. C. nom. Furley v. Bates, 33 L. J.,
Ex. 43.
Martineau v. Kitchen, ante.

(1) Joyce v. Swann, 17 C. B., N. S. 84.

(m) Young v. Mathews, L. R., 2 C. P. 127; 36 L. J., C. P. 61.

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(n) Martineau v. Kitching, ante. (0) Tansley v. Turner, 2 Sc. 241; 5 Bing. N. C. 151.

(p) Valpy v. Gibson, 4 C. B. 837 ; 16 L. J., C. P. 248. Joyce v. Swann, 17 C. B., N. S. 102. Hoadley v. Maclaine, 10 Bing. 482; 4 M. & Sc. 340.

'A price must be money paid or promised; Benjamin on Sales, Am. Ed. §§ 2, 85. The law will imply a reasonable price when none is mentioned, but parol evidence is admissible to show that a price was actually agreed upon, in order to establish the insufficiency of a memorandum which is silent as to the price; Id. § 249; until the price is fixed there is no contract; Id. § 87; even if it be the fault of one of the parties that no valuation was fixed, in which case, however, it is for the jury to fix the value; Id. § 87; if the price can be made certain, it will be sufficient; Fuller v. Bean, 34 N. H. 304. In the civil law it was a settled rule that there could be no sale without a price certain. "Pretium autem constitui oportet, nam nulla emptio sine pretio esse protest consed et certum esse debet," was the language of the Institutes. Lib. 3. tit. 23-1. And it was a cubject of long contest among the

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