An innocent purchaser of property from a bailee for hire acquires no title, and on disposing of the property is liable to the bailor for its value; Miller Piano Co. v., Parker, 155 Pa. 208, 26 Atl. 303, 35 Am. St. Rep. 873. But see MARKET OVERT. Another exception is that one not the owner, even a thief, may make a valid transfer of negoti able instruments, if they are in the usual state in which they commonly pass' on deliv ery, provided the buyer has been guilty of no fraud in taking them. The bona fide holder of such negotiable instruments, and also of bank-notes, or money, lost or stolen, who has paid a valuable consideration or furnish ed an equivalent, can retain title against any former owner; even against one from whom such chattel has been stolen ; Wheeler v. Guild, 20 Pick. (Mass.) 545, 32 Am. Dec. 231; Roth v. Colvin, 32 Vt. 125 ; Hall v. Hale, 8 Conn. 336 ; 3 Burr. 1516 ; 5 B. & Ad. 909; Benj. Sales (4th ed.) § 15, So (arguendo) of coupon bonds of the ordinary kind; Mur ray v. Lardner, 2 Wall. (U. S.) 110, 17 L. Ed. 857, disapproving Gill v. Cubit, 3 B. & C. 466; and approving Goodman & Harvey, 4 Ad. & El. 870; also a lost or stolen bill or note ; arguendo in Shaw v. R. Co., 101 U. S. 557, 25 L. Ed. 892 ; but otherwise of a lost or stolen bill of lading ; id.
Where two parties in good faith buy the same property, the one first receiving pos session is entitled to hold it; Thomas v. Ramsey, 47 Mo. App. 84.
There is a class of persons who are in capable of purchasing except sub modo, as infants, insane persons and drunkards ; Benj. Sales § 21; and another class, who, in consequence of their peculiar relation with regard to the owner of the thing sold, are totally incapable of becoming purchasers while that relation exists; such as trustees, guardians, assignees of insolvents, and, gen erally, all persons who, by their connection with the owner, or by being employed con cerning his affairs, have acquired a knowl edge of his property, as attorneys, couvey ancers, and the like.
Statute of Frauds. Sec. 17 provides : No contract for the sale of any goods, wares, and merchandise for the prices of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, or some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents hereunto lawfully authorized. In the Unit ed States a corresponding provision has been passed in a11 the states but Alabama, Arizona, Delaware, Illinois, Kansas, Ken tucky, Louisiana, New Mexico, North Caro lina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia and West Vir ginia. The language of these statutes is not uniform and is often not quite the same in meaning as that of the English statute.
By the Sales Act: (1) A contract to sell or a sale of any goods or choses in action of the value of $500 ($100 in Connecticut and to $2, 500 in Ohio) or upwards shall not be enforce able by action unless the buyer shall accept part of the goods or choses in action so con tracted to be sold or held, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2) The
provisions of this section apply to every such contract or sale notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale 'to others in the ordinary course of the seller's busi ness, the provisions of this section shall not apply. (3) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct Ms as sent to becoming the owner of those specific goods.
Contracts for work and labor have never been within the terms of statutes of frauds and to determine whether there is such con tract, the following rule was stated by Black burn, J., in 1 B. & S. 272: "if the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; but if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party can not sue for goods sold and delivered." This rule has been carried to the extent of holding that a contract to paint a portrait is a con tract for the sale of goods ; 1 Cab. & E. 287. The rule most commonly adopted in America is what is known as the Massachu setts rule as stated by Shaw, C. J., in Mixer v. Howarth, 21 Pick. (Mass.) 205, 32 Am. Dec. 256, as follows: "When the contract is a contract of sale either of an article then existing, or of articles which the vendor usually has for sale in the course of his busi ness, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immedi ately. But where it is an agreement with a workman to put materials together and con struct an article for the employer, whether at an agreed price or not, though in com mon parlance it may be called a purchase and sale of the article, to be completed in futuro, it is not a sale until an actual or constructive delivery and acceptance ; and the remedy for not accepting is on the agree ment; Flynn v. Dougherty, 91 Cal. 669, 27 Pac. 1080, 14 L. R. A. 230; Crockett v. Scrib ner, 64 Me. 447 ; Pitkin v. Noyes, 48 N. H. 294, 97 Am. Dec. 615, 2 Am. Rep. 218; Meincke v. Falk, 55 Wis. 427, 13 N. W. 545, 42 Am. Rep. 722.