3. There must be an agreement as to the specific goods whidh form the basis of. the contract of sale ; in other words, to make a perfect sale the parties must have agreed, the one to part with the title to a specific article, and the other to acquire euch title : an agree ment to sell one hundred bushels of wheat, to be measured out of a heap, does not change the property until the viheat has been measured. 3 Johns. N. Y. 179 ; 15 id. 349 ; 2 N. Y. 258 ; 5 Taunt. 176 ; 7 Ohio, 127 ; 3 N. H. 282 ; 6 Pick. Mass. 280 ; 6 Watts, Penn. 29 ; 7 Ell. & B. 885. And see 6 Barnew. & C. 388 ; 7 Gratt. Va. 240 ; 34 Me.
289; 25 Penn. St. 208 ; 22 N. H. 172 ;, 24 id 337; 7 Dan. Ky: 61 ; 11 Humphr. Tenn. 206 , 11 Ired. No. C.. 609.
Price. To constitute a sale, there must be a price agreed upon; but upon the maxim id certurn est quod reddi cerium potest, a sale may be valid although it is agreed that the price for the thing sold shall be determined by a third person. 4 Pick. Mass. 179. See 10 Bingh. 382, 487 ; 11 Ired. No. C. 166 ; 12 id. 79.
The price must be an actual or serious price, with an intention on the part of the seller to require its payment : if; therefore, one should sell a thin°. to another, and by the same agreement he sliould release the buyer from the payment, this would not be a sale, but a gift; because in that case the buyer never agreed to pay any price, the same agreement by which the title t,o the thing is passed to him discharging him from all obli gations to pay for it. As to the quantum of
the price, that is altogether immaterial, unless there has been fraud in the transaction.. The price must he certain or determined ; but it is sufficiently certain if, as before obserted, it be left to the determination of. a third person: 4 Pick, Mass. 179 ; Pothier, Vente, n. 24. And an agreement to pay for goods what they are worth is sufficiently certain. Coxe, N.J. 261 ; Pothier, Vente, n. 26. See.2 Sumu. C. C. 539 ; 20 Mo. 553 ; 22 Penn. St. 460. The price must consist in a surn of money which the buyer agrees to pay to the sellet for if paid for in any other way the contract would be an exchange or barter, and not a sale, as before observed. ' 4. The consent of the contracting parties, which is of the essence of a sale, consists in the agreement of the will of the seller to sell a certain thing to the buyer for a certain price, and in the will of the buyer to pur chase the. same thing for the . same pram. Care must be taken to distinguish betwei:n an agreement to enter into a future contract a present actual agreement to make a sale.
The consent is certain when the parties expressly declare it. This, in some cases, it is requisite should be in writing. See