Sale

A contract between two parties, called, respectively, the "seller" (or vendor) and the "buyer," (or purchaser,) by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter the title and the possession of an object of property. See Pard. Droit Commer. § 6; 2 Kent, Comm. 863; Poth. Cont Sale, § 1. Sale is a contract by which, for a pecuniary consideration called a "price," one transfers to another an interest in property. Civil Code Cal. § 1721. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. Three circumstances concur to the perfection of the contract, to-wit, the thing sold, the price, and the consent. Civil Code La. art. 2439. A transmutation of property'from one man to another in consideration of some price or recompense in value. 2 Bl. Comm. 446. "Sale" is a word of precise legal import, bath at law and in equity. It means, at all times, a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold. See Butler v. Thomson, 92 V. S. 414, 23 L. Ed. 684; Ward v. State, 45 Ark. 353; Williamson v. Berry, 8 How. 544, 12 L. Ed. 1170; White v. Treat (C. C.) 100 Fed. 291; Iowa v. McFarland, 110 U. S. 471, 4 Sup. Ct. 210, 28 L. Ed. 198; Goodwin v. Kerr, 80 Mo. 281; State v. Wentworth, 35 N. H. 443; Co.m. v. Packard, 5 Gray (Mass.) 103; Clemens v. Davis, 7 Pa. 264; Tompkins v. Hunter, 149 N. Y. 117, 43 N. E. 532. Synonyms. The contract of "sale" is distinguished from "barter" (which applies only to goods) and "exchange," (which is used of both land and goods,) in that both the latter terms denote a commutation of property for property; i. e., the price or consideration is always paid in money lf the transaction is a sale, but, lf it is a barter or exchange, it is paid in specific property susceptible of valuation. "Sale" differs from "glft" in that the latter transaction involves no return or recompense for the thing transferred. But an onerous glft sometimes approaches the nature of a sale, at lcast whore the charge it imposes is a payment of money. "Sale" is also to be discriminated from "bailment;" and the difference is to be found in the fact that the contract of bailment aiways contemplates the return to the bailor of the specific article delivered, either in its original form or in a modified Or altered form, or the return of an article Which, though not identical, is of the same class, and is equivalent. But sale never involves the return of the article itself, but only a consideration in money. This contract differs also from "accord and satisfaction;" because in the latter the object of transferring the property is to compromise and settle a claim, while the object of a sale is the price given.

— Absolute and conditional sales. An absolute sale is one where the property in chattels passes to the buyer .upon the completion of the bargain between theparties. Truax v. Parvis, 7 "Houst. (Dei.) 330, 32 Atl. 227. A conditional sale is one in which the transfer of title is made to depend on the performance of a condition ; or a purchase for a price paid or to be paid to become absolute on a particular event, or a purchase accompanied by an agreement to resell upon particular terms. 'Poindexter v. Mc-Cannon, 16 N. C. 373, 18 Am. Dec. 591; Crimp v. McCo.rmick Const. Co., 72 Fed. 366, 18 C. C. A. 695; Churchill v. Demeritt, 71 N. H. llO, 5l Atl. 254; Van Allen v. Francis, 123 Cal. 474, 56 Pac. 339. Conditional sales are distinguishable from mortgaged. They are to be taken strictly as independent deniings between strangers. A mortgage is a security for a debt, while a conditional sale is a purchase for a price paid, or to be paid, to become absolute on a particular event; or a purchase accompanied by an agreement to resell upon particular terms. Turner v. Kerr, 44 Mo. 429; Crane v. Bon-nell, 2 N. J. Eq. 264; Weathersly v. Weathers-ly, 40 Miss. 462, 90 Am. Dec. 344; Hopper v. Smyser, 90 Md. 363, 45 Atl. 206.

— Bill of sale. See Bill.

— Executed and executory sales. An executed sale is one which is final and complete in all its particulars and details, nothing remaining to be done by either party to effect an absolute transfer of the subject-matter of the sale. An executory sale is an incompleted sale; one which has been definitely agreed on as to terms and conditions, but which has not yet been carried into full effect in respect to some of its terms or details, as where it remains to determine the price, quantity, or identity of the thing sold, or to pay installments of purchase-money, or to effect a delivery. See McFadden v. Henderson, 128 Ala. 221, 29 South. 640; Fogel v. Brubaker, l22 Pa. 7, 15 Atl. 692; Smith v. Barron Co.unty Sup'rs, 44 Wis. 691.

— Forced sale. A sale made without the consent or concurrence of the owner of the property, but by virtue of judicial process, such as a writ of execution or an order under a decree of foreclosure.

— Fraudulent sale. One made foi the purpose of defrauding the creditors of the owner of the property, by covering up or removing from their reach and converting into cash property which would be subject to the satisfaction of their claims.

— Judicial sale. A judicial sale is one made under the process of a court having competent authority to order it, by an officer duly appointed and commissioned to sell, as distinguished from a sale by an owner in virtue of his right of property. Williamson v. Berry, 8 How. 547, 12 L. Ed. 1170; Terry v. Co.le, 80 Va. 701; Black v. Caldwell (C. C.) 83 Fed. 880; Woodward v. Dillworth, 75 Fed. 415, 21 C. C. A. 417.

— Memorandum sale. A name sometimes applied to that form of conditional sale in which the goods are placed in the possession of the purchaser subject to his approval, the title remaining in the seller until they are either accepted or rejected by the vendee.

— Private sale. One negotiated and concluded privately between buyer and seller, and not made by advertisement and public outcry or auction. See Barcello v. Hapgood, 118 N. O. 712, 24 S. E. 124,

— Public side. A sale made in pursuance of a notice, by auction or public outcry. Robins v. Bellas, 4 Watts (Pa.) 258.

— Sale and return. This is a species of contract by which the seller (usually a manufacturer or wholesaler) delivers a quantity of goods to the buyer, on the understanding that, if the latter should desire to retain or use or resell any portion of such goods, he will consider such part as having been sold to him, and will pay their price, and the balance he will return to the seller, dr hold them, as bailee, subject to his order. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 I Ed. 1093; Haskins v. Dem, 19 Utah, 89, 56 Pac. 953; Hickman v. Shimp, 109 Pa. 16.

— Sale in gross. The term "side in gross," when applied to the thing sold, means a sale by the tract, without regard to quantity, and is in that sense a contract of hazard. Yost v. Malli-cote, 77 Va, 616.

— Sale-note. A memorandum of the subject and terms of a sale, given by a broker or factor to the seller, who bailed him the goods for that purpose, and to the buyer, who dealt with him. Also called "bought and sold notes."

— Sale on credit. A sale of property accompanied by delivery of possession, but where payment of the price is deferred to a future day.

— Sale on approval. A species of conditional sale, which is to become absolute only in case the buyer, on trini, approves or is satisfied with the article sold. The approval, however, need not be express; it may be interred from his keeping the goods beyond a reasonable time. Benj. Sales, § 911.

— Sale per aversionem. In the civil law, a sale where the goods are taken in bulk, or not by weight or measure, and for a single price, or where a piece of land is sold for a gross sum, to be paid for the whole premises, and not at a fixed price by the acre or foot. Winston v. Browning, 61 Ala. 83; State v. Buck, 46 La. Ann. 656, 15 South. 53l.

— Sale with all faults. On what is called a "sale with nil faults," unless the seller fraudulently and inconsistently represents the article sold to be fanitless, or contrives to conceal any fault from the purchaser, the latter must take the article for better or worse. 3 Camp. 154; Brown.

— Sheriff's sale. A sale of property, conducted by a sheriff, or sheriff's deputy, in virtue of his authority as an officer holding process.

— Tax-sale. A sale of land for unpaid taxes; a sale of property, by authority of law, for the collection of a tax assessed upon it, or upon its owner, which remains unpaid.

— Voluntary sale. One made freely, without constraint, by the owner of the thing sold. 1 Bouv. Inst. no. 074.