By the Sales Act; (1) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present- sale, the buyer becomes an owner In common with the owner or owners of the remaining shares. (2) In the case of fungible goods there may be a sale of an undivided share Of a specific mass, though the seller purports to sell and the buyer to buy a def inite number, weight or measure of the goods in the mass, and though the number, weight and measure is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the num ber, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller Is bound to make good the deficiency from simi lar goods, unless a contrary intent appears.
Destruction of the Subjet't of the Bale. 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; Benj. Sales § 76; 5 Maule & S. 228; Allen v. Hammond, 11 Pet. (U. S.) 63, 9 L. Ed. 633 ; Thompson v. Gould, 20 Pick. (Mass.) 139. Where the thing does not exist at the date of the contract the sale is void ; as where, unknown to the parties, corn on a vessel not yet arrived, had, before the sale, been sold at an intermediate port ; 5 H. L. C. 673. Where, after the sale, and without fault of the seller, the thing sold perished, the seller is released; Wells v. Cal nan, 107 Mass. 514, 9 Am. Rep. 65; Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325; but it is otherwise if property has passed, though the goods were left in the seller's possession ; 32 L. J. Q. B. 164. On a contract of future sale, if the subject-matter perish before property has passed, the contract is avoided. It is evident, too, that no sale can be made of things not in commerce: as, the air, the wa ter of the sea, and the like.
By the Sales Act: (1) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agree ment is made, the agreement is void: (2) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in , character, the buyer may at his option treat the sale, (a) as avoided ; (b) as transferring the property In all the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible or to pay agreed price for the goods in which the prop erty passes if the sale was divisible.
The above rules govern in the case of de struction of goods contracted to be sold be fore the risk passes to the buyer.
The price. To constitute a sale, there must be a price agreed upon. The presumption is that where the price is not definitely ascer tained, the title remains in the vendor until a computation has been made ; Blackb. Sales
122; Warren v. Buckminster, 24 N. H. 336; Love v. State, 78 Ga. 66, 3 S. E. 893, 6 Am. St. Rep. 234. But this may be rebutted by proof that the parties intended to have the right of property vest in the purchaser at once ; Chapman v. Shepard, 39 Conn. 413 ; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334. Upon the maxim id certum eat quod reddi eertum potent, a sale may be valid although it is agreed that the price for the thing sold shall be determined by a third person ; Brown 'v. Bellows, 4 Pick. (Mass.) 179. A contract of sale is valid though no time of payment is agreed on, the law imply ing payment on delivery ; Lamont v. Le Fevre, 96 Mich. 175, 55 N. W. 687.
By the Sales Act: (1) The price may be fixed by the contract or may be left to be fixed in such a manner as may be agreed, or it may be determined by the course of dealing between the parties. (2) The price may be made payable in any personal property. (3) Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for trans ferring or for promising to transfer the prop erty in goods, the act does not apply. (4) Where the price is not determined in accord ance with the foregoing provisions the buyer must pay a reasonable price. What is a rea sonable price is a question of fact dependent on the circumstances of each particular case. See PRICE.
Conditions and Warranties. See CONDI TIONS ; WARRANTY.
Transfer of Property between Buyer and Seller. The property is presumed to pass when the contract is made if the goods are identified, and nothing remains to be done other than delivery of the goods and payment of the price ; Parsons v. Dickinson, 11 Pick. (Mass.) 352; Richardson v. Ins. Co., 136 N. C. 314, 48 S E. 733 ; Corn. v. Hess, 148 Pa. 98, 23 Atl. 977, 17 L. R. A. 176, 33 Am. St. Rep. 810. If there is something to be done by the seller to put the goods into a deliverable state, the natural inference is that the parties do not intend an immediate transfer of title. The rule, however, is but one of presumption and if the parties intend that the property shall pass and clearly manifest •that intention, their intention will be effectual; Paine v. Young, 56 Md. 314 ; Martz v. Putnam, 117 Ind. 392, 20 N. E. 270. Delivery of the goods to the buyer would almost certainly indicate such an intention if it were not expressly stated that the property was retained; Bank of Huntington v. Napier, 41 W. Va. 481, 23 S. E. 800 ; Trigg Co. v. Bucyrus Co., 104 Va. 79, 51 S. E. 174. Payment of the whole price or of a considerable part of it would also seem some evidence of an intention to make an immediate transfer ; Butterworth v. McKin ly, 11 Humph. (Tenn.) 206. But it is no evi dence if the payment is small, and apparently intended merely to bind the bargain; Elgee Cotton Cases, 22 Wall. (U. S.) 180, 22 L. Ed. 863.