Page:The American Cyclopædia (1879) Volume XIV.djvu/584

 560 SALE paid, even though the purchaser shortly after becomes insolvent ; for the seller's lien being once lost or waived by the delivery, it cannot reattach. A sale without delivery is not valid, in general, against a third person who buys without notice ; and if the goods are sold by the vendor to two different and innocent par- ties, by transfers equally valid, he who first obtains possession of the goods will hold them. But as between the seller and the purchaser, delivery is not necessary to complete the bar- gain ; though as between the seller and his creditors a stroog inference arises, in the ab- sence of delivery, that the sale itself is colora- ble, and intended as a fraud upon the creditors. This inference is not conclusive, but is one of fact to be considered by the jury in connection with other circumstances. Symbolical deliv- ery will in many cases be sufficient and equiv- alent in its legal effect to actual delivery. The delivery of the key of a warehouse in which the goods sold are deposited ; or trans- ferring them in the warehouseman's or wharf- inger's books to the name of the buyer ; or the delivery of a part as representative or as an instalment of the whole, is a delivery suf- ficient to transfer the property. When the goods sold are of such a nature or in such a situation that a personal possession of them is impracticable or inconvenient, the simple sale and an agreement of the parties will pass the property to the purchaser without actual de- livery. If no particular time is appointed by the terms of the contract for delivery or pay- ment, these must be made within a reasonable time ; and the seller is bound to keep the things sold until time of delivery with ordinary care and good faith ; otherwise he will be liable should they be injured or destroyed. If the contract is to deliver at the residence of the buyer or any other particular place, and this is not done, the seller is liable even though such a delivery becomes impossible, unless it becomes so through the act or fault of the pur- chaser. If the goods are to be delivered to the purchaser, but no place of delivery is named, they must be sent to him wherever he may happen to be, or to his house or place of busi- ness, unless they were bought to be used for any particular purpose, or at any particular place. When a time and place are expressed in the contract of sale, the buyer must receive and pay for them then and there, and also pay all reasonable charges for keeping after the sale and before delivery. If the goods are sold on credit, and the purchaser should be- come insolvent before delivery, the seller may demand security and refuse to deliver with- out. Whenever, in a contract of sale, it is agreed that some particular act shall be done in relation to the thing sold, by either party, as 'that the goods shall be delivered on a par- ticular day, or on request, or that a promisso- ry note shall be given, this makes a condi- tional sale. So it is a condition precedent where some act remains to be done, such as weighing or measuring; and if there is no evi- dence tending to show the intention of the parties to make an absolute and complete sale, the property does not pass wholly to the buy- er until such condition is performed. If the buyer neglects or refuses to comply with a condition precedent, and the goods are there- fore not delivered, the seller may, after due delay and precautions, resell them, and hold the buyer responsible for any deficiency in the price. In all of these cases the property in the thing sold passes to the buyer by the fact of sale, but he holds it subject to the lien or other reserved right of the seller. One class of sales on condition are those known as "contracts of sale or return," where posses- sion of the goods is given to the purchaser with the privilege of keeping them or return- ing them within a specified time. If he re- turns them within this time, the contract is rescinded ; but otherwise the sale becomes ab- solute and complete. When goods are sold by auction, the conditions of sale made known to the buyer by the advertisement, or communi- cated by the auctioneer at the time of sale, bind both parties, and regulate the transfer and possession of the property. When goods which are only a numerical proportion of an entire bulk are sold, no property passes and the sale is incomplete until such part has been separated and set apart from the remainder and actually delivered. The seller of goods has not only a lien upon them for the price while they remain in his possession, but he may, in the event of the bankruptcy or in- solvency of the purchaser, after he has parted with the possession of them, and while they are in tramitu on their way to the purchaser, retake them, the price being unpaid. (See STOPPAGE IN TRAKSITC.) A sale of goods with intent to delay, hinder, or defraud a creditor, though good as between the parties, is utterly void as against the creditor, even if the purchaser pays full value for them, unless the purchaser was ignorant of the fraud and purchased them in good faith, as well as for a good consideration. Contracts of sale which have an immoral or illegal object in view are void at common law. Contracts with an ene- my for the purchase or sale of goods, and contracts in contravention of statutory provis- ions, are illustrations of this rule. The ob- taining goods upon false pretences, under col- or of purchasing them, does not change the property ; but it has been held that a bonafide purchaser of goods for a valuable considera- tion, from a person who obtained them from the owner by false pretences, amounting even to a felony, will hold them against the first seller, if he (the first seller) voluntarily parted with the possession and intended to part with the title. The sale will never be valid in favor of the purchaser where he obtains the goods by fraud practised upon the seller under color of a purchase, whether on credit or otherwise. Thus, if an infant fraudulently represents him-