PRICE. The consideration in money given for the purchase of a thing.
It is not synonymous with value; Chicago, K. & W. R. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083.
There are three requisites to the quality of a price in order to make a sale.
It must be serious and such as may be de manded; if, therefore, a person were to sell me an article, and by the agreement, reduced to writing, he were to release me from the payment, the transaction would no longer be a sale, but a gift. Pothier, Vente, n. 18.
It must be certain and determinate; but what may be rendered certain is considered as certain; if, therefore, I sell a thing at a price to be fixed by a third person, this is sufficiently certain, provided the third person make a valuation and fix the price; Pothier, Vente, n. 23; Brown v. Bellows, 4 Pick. (Mass.) 179; 2 Kent 477. When the parties have not expressed any price in their con tract, the presumption of law is that the thing is sold for the price it generally brings at the time and place where the agreement was made; Lyles v. Lyles's Ex'rs, 6 H. & J. (Md.) 273; Coxe 261; 10 Bingh. 376; 11 U. C. Q. B. 545.
The third quality of a price is that it con sists in money, to be paid down, or at a fu ture time; for if it be of anything else it will no longer be a price, nor the contract a sale, but exchange or barter; Pothier, Vente, n.
30; 16 Toullier, n. 147; Mitchell v. Gile, 12 N. H. 390 ; Vail v. Strong, 10 Vt. 457; see, Hud son I. Co. v. Alger, 54 N. Y. 173, where it was held that price in an act meant value or compensation.
The true price of a thing is that for which things of a like nature and quality are usu ally sold in the place where situated, if real property ; in the place wlibre exposed to sale, if persongl ; Pothier, Vente, n. 243. The first price or cost of a thing does not always af ford a sure criterion of its value. It may have been bought very dear or very cheap ; Ayl. Parerg. 447; Merlin, Repert; Brown v. Bellows, 4 Pick. (Mass.) 179.
In a declaration in trover it is usual, when the chattel found is a living one, to lay it as of such a price; when dead, of such a value ; 8 Wentw. Pl. 372, n.; 2 Lilly, Abr. 629.
Lord Tenterden's act has substituted value for price in the English statute of frauds; 25 L. J. C. P. 257. See Campb. Sales 162 ; Cos;