SALE. An agreement by which one of two contracting parties, called the seller, gives a thing and passes the title to it, in ex change for a certain price in current money, to the other party, whb is called the buyer or pUrchaSer, who, on his part, agrees to pay such price. Pardessus, Dr. Com. n. 6 ; Noy, Max. ch. 42; 'Sheppard, Touchst. 244; 2 Kent, Comm. 363; Pothier, Vette, n. 1.
'This contract differs from a barter or exchafige in this: that in the latter the price or consideration, instead of being paid in money, is paid in goods or merchandise susceptible of a valuation. 3 Salk, 157; 12 N. H. 390 ; 10 Vt. 457. It differs froni ac cord and satisfaotion becatise DI that contract ths thing is given for the purpose of quieting a claim, and not for a price. _An onerous gift, when the burden it imposes is the payment of a sum of money, is, when accepted, in the nature of a sale. When partition is made between two or more joint owners of a chattel, it would seem the' contraot in the nature of a barter. See 11 Pick. Mass. 311.
An absolute sale is one made and completed without any condition whatever.
A conditional sale is one which depends for its validity upon the fulfilment of some con dition. See 4 Wash. C. C. 588; 10 Pick. Mass. 522; 18 Johns. N. Y. 141 8 Vt. 154; 2 Rawle, Penn. 326 ; Coxe, N. J. 292; 2 A. K. Marsh. Ky. 430.
A forced sale is one made without the. con sent of the owner of the property, by some officer appointed by law, as by a marshal or a sheriff, in obedience to the mandate of a competent tribunal. This sale has the effect to transfer all the rights the owner had in the property, but it does not, like a voluntary. sale of personal property, guarantee a title to the thing sold; it merely transfers the rights of the person as whose property it has been seized. This kind of a sale is sometimes called a judicial sale.
A private sale is one made voluntarily, and not by auction.
'A public sale is one made at auction to the highest bidder. Auction sales sometimes are voluntary, as, when the owner chooses to sell his goods in this way, and then as between the seller and the buyer the usual rules relating to sales apply ; or they are involun tary or forced, when the same rules do not apply.
A voluntary sale is one made freely with out constraint by the owner of the thing sold: this is the common case of sales, and to this class the general rules of the law of sale apply.
2. Parties. As a general rule, all persons aid juris maybe either buyers or sellers. See PARTIES. There is a cla.ss of persons who s.re incapable of purchasing except sub rnodo, as, infants and married women, 1 Parsons, Contr. 437 ; and another class who, in conse quence of their peculiar relation with regard to the owner of the thing sold, are totally incapable of becoming purchasers while that relation exists; these are trustees, guardians, assignees of insolvents, and, generally, all persons who, by their connection with the owner, or by being. employed concerning his affairs, have acquired a knowledge' of his property, as, attorneys,, conveyancers, and the like.
Vie thing sold. There must be a thing which is the object of the sale ; for if the thing. sold at the time of the sale had ceased to exist, it is clear there can be no sale: if, for example, you and I being in Philadelphia, I sell you my house in Cincinnati, and at the time of the sale it be burned down, it is manifest there was no sale, as there was not a thing to be sold. See 1 Leon. 42; Hob. 132; 7 Exch. 208; 5 Maule & S. 228 ; 2 Kent, Comm. 640. It is evident, too, that no sale can be made of things not in commerce: as, the air, the water of the sea, and the like. When there has been a mistake made as to the article sold, there is no sale : as, for example, where 24 broker, who is the agent of ,hoth parties, sells an article and delivers to the seller a sold note describing the article sold as " St. Petersburg clean hemp,'' and bought, note to the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786, 788; 5 Barnew. & C. 437; 7 East, 569 ; 2 Campb. 337; 4 Q. B. 747; ,9 Mees. & W. Exch. 805 ; 1 Moore & P. 778.