Page:Black's Law Dictionary (Second Edition).djvu/1061

Rh St. 61']; Benedict v. U. S., 176 U. S. 357.

20 Sup. Pt. . 44 L. Ed fi1'l3; People v. Myers (Snp.) 11 N. Y. Supp. 217.

A contract between two parties, tailed. respectively, the "seller" (or vendor) and the "buyer," (or purchaser.) by which the inrnier. in consuleintion of the payment or I7I||'iliSE of [l"l_t‘i.l)(-‘lit of a certain price in mi . triinsfeis to the latter the title and the possession of un object of propeity. See i':ii-ii Droit Coninier. 5 6; 2 Kent, Comm. BAL3; Poth. Cont Sale, § 1.

Sale is a contract by which, for a pecuni- ary consideration called a "price," one trans- rcrs to another an interest in property. Civil Code Cal. § 1721.

The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. Three cir- li.il.llSt.il1CB5 concur to the perfection of the contract, to-wit, the thing sold, the price, and the consent. Civil Code Lu, art ‘.3439.

A transmutation of property from one man to anuilier in consideration of some price or recompaiim in value. 2 Bl. Comm. 446.

"Sale" is a word of precise legal iniport. both at law and in equity. It means, at all times, a contract between parties to give and to pass ri__-I 2: of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold. See Butler v. Thomson. 2 U. S. 414. 23 L. Ed. 6 : Word v. State, 45 Ark. 353: Williamson v. Berry, E E0. 4 12 L Ed. 1110: \\"liite v. Treat (c. C.) 100 red. 291; inwa v. McFarland. 110 U. S. 471, 4 Sup. Ct, 210. 28 L. Ed. 198; Goodwin v. Kerr. S0 lilo. 281; State v. Wentworth. §5 N. H. 443: Coin. v. Packard 5 Gray (l\fass.) 103; Clemens v, Davis. 7 Pa. 264: Tompkins v. Hunter, 149 N. Y. 117. 43 N. E. 532.

Synonyms. The contract of "sale" is distinguished from "barter" (which applies only to goods) and "exchange," (which is used of both land and goods.) in that both the latter tsrms denote a commutation of property for properly; I’. 6., the price or consideration is always paid in money if the transaction is a sale, but, if it is a barter or exchange, it is paid in specific property susceptible of valuation. "Sale" dilfers from "glft" in that the latter transaction involves no return or recompense for the thing transferred. But an onerous gift sometimes approaches the nature of a sale, at least where the charge it imposes is a payment of money. "Sale" is also to be dlscrimmated from "bail- ment;" and the difference is to be found in the fact that the contract or hailment nlwnys contemplates the return to the bailor of the I=IIP(-ific article delivered, either in its origi- nal form or in a modified or altered form, or the return of an article which. though not identical, is of the same class, and is equiva- lent But sale never involves the return of the article itself, but only a consideration in money. This contract differs also from "accord and saLisfact1‘on;" because in the latter the object of transferring the prop-

1.053

SALE

arty is to compromise and settle a claim, while the object of a sale is the price given. —A'I1so1ute and conditional sales. An sh- solute soile is one where the property in chattcis passes to the buyer upon the L‘(JlI","l|',’i'.iOl:l of the bargain betwr-eii the parties. Tru x v. Par- vis, 7 Huust. (Del.) 330. 33 Atl. A conditional a.ie is one in which the riisfcr of title is made to depend on the pei-foruianm of a condition; or a purchase for a piice piid or to he paid to become alisolute on a particular event, or a [)lil'(hDSe accompanied by an agreement to resell upon particular terms. Poindcxter r. Mc- Cannon. 16 N. C. 373. 18 Am. Dec. 591: Criiup v. Mtcormicir (‘oust Co.. 72 Fed. 'it‘/ii. 18 C. C. A. 595; Churchill v. Dcmeritt. 71 N. H. 110, 51 Atl. 2:74; Van Allen \. Francis. 121} Gal. 474. 56 Pac. 339. Conditional sales are distin- guishnhle from mortgans. Thcy are to be tak- en strictly as independent dealings hotween strangers. A moi't;:iu-‘e is a seciu-il_ for a debt, while a conditional sale is a purchase for a price paid, or to be paid. to hvcome absolute on a particular event; or it piircliase accompanied by an agreement to r:-sell upon particular terms. Turner v. Kerr. 44 Mi) 429: l"r~.ine v. Bonnell. 2 N. J. Eq. 26-1: Wcathcrsly v. Weathersiy. 40 Miss. 462. 90 Am Dec. 3-1-1: Hopper v. Sruyser, 90 Md. 363. 45 At]. '.’06i—BiI1 of sale. See BI.LL.—Exe¢I1I:e(1 and executor-y sales. An executed sale is one which is final and complete in all its particulars and deliiis, nothing remaining to be done by either party to effect an absolute transfer of the subject-niiitter of the sale. An eseciitory sale is an incompleted sale; one which has been definitely a"reed on as to terms and conditions, but which has not yet been carried into full etfect in respect to some of its terms or details, as where it remains to determine the price, quantity, or identity of the tbing sold, or to pay installments of pul'('lIase— money, or to effect a delivery. See i\icFarirlpn v. Henderson. 128 Ala. 221 29 South. (H0: Fogel v. Brubaker. 122 l'. (‘i‘.'l2; Smith v. Barron County Sup‘ . 44 Wis. 691.- Fox-ced sale. A sale made without the consent or concurrence of the owner of the property, but by virtue of judicial process. such as a writ of execution or an order inider a decree oi foreciosure.—l‘1-audulent sale. One made for the purpose of defrauding the creditors of the owner of the property, by covering up or removing from their reach and converting into cash properly which would be subject to the satisfaction of their claims.-—Judioial sale. A judicial saie is one made under the process of a court having competent authority to order it, by an omcer duly appointed and commissioned to sell, as distinguished from a sale by an owner in virtue of his right of property. iviliianison 1*. Berry. 8 How. 547, 12 L. E1. 1170', Terry v Cole. 80 Va. 701; Black I’. Caldwell (C. C.) 83 Fed. 830; Woodward v. Diliworth. 75 Fed. 41'.’- 21 C. C. A. 4lT.—Memorandum sale. ‘\ name sometimes applied to that form of conditional sale in vihich the goods are plated in the possession of the purchaser subject to his approvai, the title remaining in the seller until they are either accepted or rejected iiy the vendee.—Px-ivate sale. One negotiated and cocnluded privately between huycr and seller, and not made by advertisement and piililic outcry or auction. See Barcello v. Hapgood, 118 N. C. 712. 24 S. E. 1Z4.—Pu'I1].ie sale. A sale made in pursuance of a notice, by auction or public outcry. Rohins v. Bellas. 4 Watts (Pa.) 258. —Ss.1e and return. This is a species of contract by which the seller (usually a manufacturer or wholesaler) delivers a quantity of goods to the huyer. on the understanding that, if the latter should desire to retain or use or resell any portion of such goods, he will consider such part as having been sold to him, and will pug their price, and the balance he will return to t e sell- er, or hold them, as bailee, subject to his order