A person may make a valid agreement to sell a thing which is not his at the moment, and which may not even be in existence. Thus a person may sell the crop of wheat which he expects his farm will produce during the next season, or he may contract to sell 1,000 head of cattle, which he must first go out and buy.
But a person who finds or steals the goods of an other does not get a good title. The general rule is that the person to whom he transfers the goods, even tho this person is an innocent purchaser for full value, does not get a good title. The English rule is that where goods are sold in market overt (that is, an open, public and legally constituted market), according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.
In Quebec, the rule is that if a thing lost or stolen is bought in good faith in a fair or market, or at a public sale, or from a trader dealing in similar arti cles, the owner cannot reclaim it without reimbursing to the purchaser the price he has paid for it. If the thing lost or stolen be sold under the authority of law, it cannot be reclaimed.' Apparently the English rule of market overt does not prevail in the United States. Hence, in the United States, if B buys a horse in a public market from one who is not its owner and who has no authority, either actual or apparent. from the owner to sell it, the buyer gets no title which he can oppose to the owner. B has redress only against the seller.
4. Subject matter of the sale.—Everything may be sold which is not excluded by its nature or destination, or by special provision of law from being an object of commerce. A general rule may be stated to the effect that a present or actual sale can be made only of things which actually exist at the time and are owned by the seller. This is now the rule in Eng land, tho it was not always so. The English rule would probably be followed in the English law inces. Following that rule, then, one does not sell fu ture goods, but makes an agreement to sell them—tho the contract may be called a sale.
In the United States and in Quebec, on the other hand, one may make a present sale of future goods which have a potential existence—and this rule was formerly recognized in England. Future goods hav
ing a potential existence are, for example the natural produce or the expected increase of something al ready owned or possessed by the seller. Thus the hay that will grow next season in the seller's field, the wool that may be clipped from his sheep, the milk that his cows may yield, and so on. Of these he may make an immediate grant or assignment by sale. The buyer's title and right to possession are perfect as soon as the thing comes into actual existence. Future goods, such as the hay, or wool, or milk which he may derive from the field, or sheep, or cows are goods of which he cannot make an immediate assignment by sale, but which he can promise or agree to sell. Thus also a person who is actually employed with some firm may sell the future earnings of his present employment. but he cannot make a present sale of the earnings of an employment which he expects to get. In the lat ter case, the earnings have no potential existence. He may, however, promise to sell them.
The English rule was laid down in a leading case : 1 A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign prop erty which is to come into existence in the future; and when it has come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to be assigned thus becomes a complete assign ment. If a person contracts for value to settle all such real estate as his father shall leave him by will, or purports actually to have by the deed of such real estate, the effect is the same. It is a contract for value which will bind the property, if the father leaves any property to his son.
This is simply a longer way of saying that while a sale of future property which has no existence and does not belong to the seller is invalid, if the seller subsequently does acquire ownership of the things which he purports to have sold, the vendee will then be entitled to treat the contract as a sale.