Facture goods are defined by section 62 of the Sale of Goods Act, 1893, as " goods to be manufactured or acquired by the seller after the making of the contract of sale." And it is expressly provided by section 5 of the same Act that a valid contract of sale made be entered into not only of existing goods owned or possessed by the seller, but also of goods " to be manu factured or acquired by the seller after the making of the contract of sale." Such last-mentioned goods are also the subject of a special designation by the Act as " future goods." It is therefore clear that as a general rule any person may sell or offer for sale any goods of which he is not the owner, but which he expects or hopes to acquire. If he may thus contract to sell future goods, it follovvs that he has the right, as the first step to such a contract, to offer them for sale, and there is nothing to prevent him from making the offer by advertisement, or in any other lawful way. In Ajello v.IVarsley the defendant, a furniture dealer, advertised in the newspapers that he would sell a certain piano, manufactured by the plaintiff, at a price which was less than that at which even the plaintiff himself sold his pianos of that class to the trade. The result was that other dealers declined to continue purchasing pianos from the plaintiff, and the latter then refused to supply the defendant with any more. The advertisement, however, continued to appear, the defendant expecting to be able to acquire pianos of the plaintiff's make from other dealers. Thereupon the plaintiff took action to restrain the defendant from continuing the publication of the advertisement, and from selling pianos of the advertised description at less than the plaintiff's wholesale price. It was held, however, that so long as the defendant acted honestly he had a legal right to issue the advertisement, and he was entitled to make the offer at any price he chose, whether remunerative or not. And even if the advertisement contains a misrepresentation that the goods advertised are actually at the time in the possession of the advertiser, that alone does not necessarily make the advertisement fraudulent. As was said by the judge in the above case " In order that a misrepresentation may be actionable, it must not merely be untrue, but cause damage to the person who complains of it. The question then arises, Is the damage complained of by the plaintiffs [the loss of customers] attributable to the misrepresentation of fact contained in the advertisement ? It appears to me that this question must be answered in the negative ; for an advertisement such as, in my opinion, the defendant might legally have issued would have produced the same consequences and been followed by the same damaging results."
In the case of Watts v. Friend there was an attempt to obtain a ruling that a contract for the sale of a thing of which no part is in existence at the time of the contract is on a different footing from a contract for the sale of existing goods, or of goods to be made, the materials of which then existed. There A. agreed to supply 13. with a quantity of turnip seed, and 13. agreed to sow it on his own land, and sell the crop of seed produced therefrom to A. And the contract was upheld as a valid one for the sale of goods. There is now, and for many years has been, no doubt whatever as to the law on this point. In the words of the Sale of Goods Act—subsection 3 of section 5— " where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods." Not a complete sale by way of a present assignment or transfer of the goods them selves, but an agreement to assign them and complete the sale after the goods have been acquired. liven if the contract of sale is in the form of an absolute present assignment of the "after-to-be-acquired" goods, that contract can be nothing more than an agreement to assign when the goods have been acquired. " A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign property which is to come into existence in the future," said the Master of the Rolls in Collyer v. hones," and w hen it has come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a com plete assignment . . . When this is clearly understood, it follows that until the property comes into existence the contract remains only a contract by which the party entering into it will be bound when the property comes into existence, and it is a contract for the breach of which he will incur liability." In this connection it should be noted that, as a result of the necessary dis tinction between a mere agreement for sale and an actual completed sale, a person who has purchased the goods and gets them into his possession when acquired or in existence, has a good title to those goods as against a mere purchaser thereof under a prior agreement for sale, provided, of course, that the second purchaser had no notice of that agreement (Joseph v. Lyons ; Hallos v. Robinson). In such a case the only remedy of the first purchaser is to proceed against the vendor for damages for breach of his contract, and for the return of the purchase-money if that has been paid. See SALE OF GOODS.