erty alone; while the corresponding transactions in real estate are classed under the title of "Vendors and Purchasers."

§ 2. Who may sell. Any person who has the capacity to contract generally may sell goods of which he is the owner, and convey a perfect title to the purchaser. See Vol. 1, pp. 77 et seq. But no one, however competent to contract, can sell goods and convey a valid title to them unless he be the owner of the goods, or lawfully represent the owner; for it is a well-settled maxim of the law, that no one can transfer a better title than he himself possesses. Whistler v. Forster, 14 C. B. (N. S.) 248; Peer v. Humphrey, 2 Ad. & El. 495. It is, therefore, held, that a purchaser of goods from a thief obtains no title, whether the theft was a larceny at common law or by statute. Breckinridge v. McAfee, 54 Ind. 141. And if the purchaser, being ignorant of the fact that the goods were lost or stolen, resell them to a third person, in good faith, he remains liable in trover to the original owner, who may maintain his action without prosecuting the felon. Lee v. Bayes, 18 C. B. 599; Stone v. Marsh, 6 Barn. & C. 551; White v. Spettigue, 13 M. & W. 603; Marsh v. Keating, 1 Bing. N. C. 198; 2 Cl. & Fin. 250; Beazley v. Mitchell, 9 Ala. 780. But in England, sales in market overt are available against the original owner for the protection of an innocent purchaser, even though he bought the goods of a thief. Peer v. Humphrey, 2 Ad. & El. 495; Dyer v. Pearson, 3 Barn. & Cr. 42; Crane v. London Dock Co., 5 B. & S. 313 In this country, no market overt exists. Towne v. Collins, 14 Mass. 500; Hoffman v. Carow, 22 Wend. 285; Griffith v. Fowler, 18 Vt. 390; Browning v. Magill, 2 Har. & J. (Md.) 308.

§3. Who may buy. As a general rule, all persons sui juris may be buyers as well as sellers. And certain classes of persons, who lack the capacity to contract generally, may, under special circumstances, make valid purchases. Thus, an infant has authority at common law to make contracts for necessaries, and to bind himself thereby. Hands v. Slaney, 8 T. R. 578; Cole v. Pennoyer, 14 Ill. 158. And a purchase by him of necessaries on credit will be valid, even though it be shown that he had an income at the time, sufficient to supply him with ready money to buy necessaries suitable to his condition. Peters v. Fleming, 6 Mees. & W. 42; Burghart v. Hall, 4 id. 727. Nor is the legal term "necessaries" restricted to the absolute necessities of life, such as meat, drink, apparel, lodgings, and medicine (Shelton v. Pendleton, 18 Conn. 417; New Hampshire Fire Ins. Co. v. Noyes, 32 N. H. 345); it also embraces articles suitable to the condition, rank, fortune, and general needs of the infant. Wharton v. McKenzie, 5 Q. B. 606; Rundel v. Keeler, 7 Watts, 237; Strong v. Foote, 42 Conn. 203. And

necessaries for an infant's wife and children are necessaries for him. Chapple v. Cooper, 13 M. & W. 256; Abell v. Warner, 4 Vt. 152; Tupper v. Cadwell, 12 Metc. 562. A lawsuit, under some circumstances, may be a necessary. Thrall v. Wright, 38 Vt. 494. But it has been held that a horse is not within the denomination of necessaries, for which an infant is liable. Merriam v. Cunningham, 11 Cush. 40; Rainwater v. Durham, 2 N. & Mc. (S. C.) 524. And in general, articles of mere luxury are always excluded. See Ryder v. Wombwell, L. R., 3 Exch. 93; Bryant v. Richardson, id. 93, note; though luxurious articles of utility are in some cases allowed. Id.; Chapple v. Cooper, 13 M. & W. 256. Where an infant had been advised by a medical man to take exercise on horseback, a horse purchased by the infant for such purpose was held to be a "necessary" for which he was liable. Hart v. Prater, 1 Jur. 623.

As a general rule, the contracts of idiots and lunatics are invalid. But in respect to supplies of necessaries furnished to an idiot or lunatic, if no advantage be taken of his condition by the seller, the purchase will be held valid. Dane v. Kirkwall, 8 Carr. & P. 679. And the doctrine is stated generally, that when a person apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property, which is fair and bona fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterward be set aside, either by the alleged lunatic or those who represent him. Molton v. Camroux, 2 Exch. 487; S. C. affirmed, 4 id. 17. See, also, Beavan v. McDonnell, 9 id. 309; Beals v. See, 10 Penn. St. 56; Skidmore v. Romaine, 2 Bradf. (N. Y.) 122; Matthiessen & W. R. Co. v. McMahon, 38 N. J. Law, 537; Searle v. Galbraith, 73 Ill. 269.

It is now well settled that the contracts of a person when in a state of complete intoxication are in general voidable, however the drunkenness may have been occasioned (French v. Hickox, 8 Ohio, 214; Cooke v. Clayworth, 18 Ves. 12; Bates v. Ball, 72 Ill. 108); but he would be liable for absolute necessaries supplied to him while in that condition. Gore v. Gibson, 13 M. & W. 623. And a man of weak intellect, arising from habitual drunkenness, and who is incapable of managing his own affairs, may make a contract for necessaries, including such things as are useful and proper for his station. Thus, he may make a contract with an attorney to have a guardian appointed for his protection under the statute; and the attorney is entitled to recover a reasonable fee from the estate of the drunkard for the value of services VOL. V.-67

rendered in procuring the appointment of a guardian, and for moneys expended for costs. Darby v. Cabanné, 1 Mo. App. 126.

At common law, a married woman is absolutely incompetent, during her coverture, to make a contract by which she is personally bound. Whipple v. Giles, 55 N. H. 139; Pippin v. Wesson, 74 N. C. 437; Stillwell v. Adams, 29 Ark. 346. A contract with her is not, as in the case of an infant, voidable only, but it is absolutely void, and therefore incapable of ratification after her coverture has ceased. Zouch v. Parsons, 3 Burr, 1794; Ross v. Singleton, 1 Del. (Ch.) 149. One exception to this general rule of the common law occurs when the husband is civiliter mortuus, or dead in law; as, for instance, if he be under sentence of penal servitude, or transportation, or banishment. Bogget v. Frier, 11 East, 304; Ex parte Franks, 7 Bing. 762; De Gaillon v. L'Aigle, 1 B. & P. 357; Spooner v. Brewster, 2 Carr. & P. 35. There are a few other exceptions to the general rule, as where the husband is an alien, and has never resided in the country (Walford v. Duchess de Pienne, 2 Esp. 553. But see De Wahl v. Braune, 1 Hurl. & N. 178; Robinson v. Reynolds, 1 Aik. [Vt.] 174); or where the husband has been absent and unheard from for the period of seven years, in which case the legal presumption arises that he is dead (Id.; Story on Sales, § 48); or if the husband desert the wife, and leaves the country without providing for her support, and without the intention of returning. Abbot v. Bayley, 6 Pick. 91; Cecil v. Juxon, 1 Atk. 278. And by the custom of London, a married woman may, if the husband assent thereto, carry on a trade, separate from him, and may sue and be sued, in all matters arising out of her dealings in her trade. Beard v. Webb, 2 B. & P. 93; Caudell v. Shaw, 4 Term R. 361. And see Robards v. Hutson, 3 McCord (S. C.), 475; Oxnard v. Swanton, 39 Me. 125; Burke v. Winkle, 2 Serg. & R. 189; Hobart v. Lemon, 3 Rich. (S. C.)

131.

Recent legislation, both in England and the United States, has made marked changes in the rules of the common law relative to the capacity of married women to make contracts, but these changes are appropriately noticed elsewhere. See Vol. 3, tit. Husband and Wife; see, also, tit. Coverture, under the head of Defenses, Vol. 6.

As to contracts of sale by agents, see Vol. 1, tit. Agency; see, also, tit. Factors and Brokers, Vol. 3.

§ 4. Must be a thing to be sold. It is essential to the validity of every executed contract of sale that there should be a thing or subjectmatter to be contracted for. And if it appear that the subject-matter of the contract was not and could not have been in existence at the time of such contract, the contract itself is of no effect, and may be disregarded

by either party. Strickland v. Turner, 7 Exch. 208; Пlastie v. Couturier, 9 id. 102; S. C., 5 H. L. Cas. 673; Franklin v. Long, 7 Gill & J. (Md.) 407. But a hope or expectation of means founded on a right in being may be the subject of a sale, because in such case there is a potential existence. Wheeler v. Wheeler, 2 Metc. (Ky.) 474; ante, Vol. 2, p. 244. Thus, a man may sell the wool to grow upon his own sheep, or the crops to grow upon his own land, or the milk that a cow may yield during the coming year. Andrew v. Andrew v. Newcomb, 32 N. Y. (5 Tiff.) 417; Bellows v. Wells, 36 Vt. 599; McCarty v. Blevins, 5 Yerg. (Tenn.) 195; Van Hoozer v. Cory, 34 Barb. 9; Sanborn v. Benedict, 78 Ill. 309. So, if a person is under a contract of service, he may assign his future earnings growing out of such contract; for the possibility of future earnings is coupled with an interest, and the right to them, though contingent and liable to be defeated, is a vested right. Hartley v. Tapley, 2 Gray, 565. But a mere possibility or contingency, not founded upon a right or coupled with an interest, cannot be the subject of a present sale, though it may be of an executory agreement to sell. Purcell v. Mather, 35 Ala. 570; Skipper v. Stokes, 42 id. 255; Low v. Pew, 108 Mass. 347; S. C., 11 Am. Rep. 357. There may be an agreement to sell all and every species of personal property not prohibited by law, whether the vendor owns it at the time or not. Iibblewhite v. McMorine, 5 M. & W. 462; Mortimer v. M' Callan, 6 id. 58; 7 id. 20; Head v. Goodwin, 37 Me. 182; Calkins v. Lockwood, 16 Conn. 276; Hamilton v. Rogers, 8 Md. 301. And, although the subject-matter of the agreement has neither an actual nor potential existence, such an agreement is usually denominated an executory contract, and for its violation the remedy of the party injured is by an action to recover the damages. See Id.; Hutchinson v. Ford, 9 Bush (Ky.), 318; S. C., 15 Am. Rep. 711; Pierce v. Emery, 32 N. H. 484; Brown v. Bateman, L. R., 2 C. P. 272. It has been further held that if one sells goods in which he has no property at the time of sale, and subsequently acquired title be-. fore the repudiation of the contract by the other party, the property in the goods, immediately on the acquisition of a title by the seller, will vest in the buyer. Frazer v. Hilliard, 2 Strobh. (S. C.) L. 309, 317; Blackmore v. Shelby, 8 Humph. (Tenn.) 439. And where the vendee in a contract of sale had an election, within a limited time, to recede from the purchase and return the article, or else was to complete the purchase and pay the purchase-money, and the vendor had no title to the thing sold at the making of the contract, but acquired one within the period limited, and the vendee allowed that period to elapse without returning the article, it was held that he could not, when subsequently sued for the purchase-money, set up a want of consideration for

the contract as originally made. Hotchkiss v. Oliver, 5 Denio, 314. And the rule in equity is, that if a vendor agrees to sell property of which he is not possessed at the time, and receives the consideration for the contract, and afterward becomes possessed of property answering the description in the contract, the court will compel him to perform; assuming, of course, that the supposed contract is one of the class of which the court would decree the specific performance. Holroyd v. Marshall, 10 H. L. Cas. 191; Belding v. Reed, 3 H. & C. 955.

It is not essential to the contract of sale that the subject-matter thereof should have a corporeal existence, and be capable of manual delivery. It is sufficient if it has an actual value, however intangible it may be. Thus, the route of a newspaper carrier (Hathaway v Bennett, 10 N. Y. [6 Seld.] 108), or the good-will of a trade (Tweed v. Mills, L. R., 1 C. P. 39), or a copyright to print and sell a manuscript (2 Bl. Com. 405), or a license to manufacture patented machines, may be the subjects of sale. Brooks v. Byam, 2 Story (C. C.), 525;

Story on Sales, § 1 7.

§ 5. The price to be paid. There can be no sale without a price in money. Ante, § 1; Wolf v. Wolf, 12 La. Ann. 529. But while this is generally true, sales are not universally made for a strict money payment. Thus, the negotiable representative of money, bills of exchange, promissory notes, or checks, may be taken as the payment of the price. See Bonnell v. Chamberlin, 26 Conn. 487; Wallace v. Agry, 4 Mas. (C. C.) 342; Kendrick v. Lomax, 2 Cr. & Jerv. 405. And it has been held, that if property is taken at a fixed money price, the transfer amounts to a sale, whether the price is paid in cash or in goods. Picard v. McCormick, 11 Mich. 68. And see Keiler v. Tutt, 31 Mo. 301; Hale v. Hays, 54 N. Y. (9 Sick.) 389; S. C., 48 Barb. 574; South Australian Ins. Co. v. Randell, L. R., 3 P. C. 101; Herrick v. Carter, 56 Barb. 41; Howard v. Harris, 8 Allen, 297. It is the rule of the common law that a promissory note or bill of exchange is prima jacie a conditional payment only. Van Ostrand v. Reed, 1 Wend. 424; Owenson v. Morse, 7 Term R. 64; Wallace v. Agry, 4 Mas. (C. C.) 342. But in Massachusetts, and in some of the other States, this rule is reversed, and the doctrine obtains, that the taking a negotiable promissory note or bill of exchange is prima facie to be deemed an absolute payment. Chapman v. Durant, 10 Mass. 51; Reed v. Upton, 10 Pick. 525. See, also, Ward v. Bourne, 56 Me. 161; Costar v. Davies, 8 Ark. 213; Wait v. Brewster, 31 Vt. 516. This presumption may, however, be rebutted (Id.); and it is said to be a question of fact, on the evidence, whether the promissory note given on the one hand and ac