time incompetent. But if a general derangement is once established or conceded, the person is presumed to be incompetent; and the party seeking to enforce the contract, must prove the other to have been sane.

§ 7. Drunkards, also, are incompetent to contract while in a state of intoxication, provided the drunkenness is so excessive and absolute as to deprive them of reason for a time, and create impotence of mind. But for absolute necessaries, if the drunkard consumes them during his drunkenness, or keeps them after becoming sober, he is lia ble. Intoxication only renders a contract voidable, not void, as the party intoxicated may adopt it upon recovering his understanding.

§ 8. Another requisition to a valid contract, is the mutual assent of the parties. A mere offer by one party not assented to or accepted by the other, constitutes no contract. Assent must also be given freely. A contract entered into under duress, or compulsion, is not binding; as where assent is extorted by threats of personal injury. Assent must also be given with a knowledge of facts. A contract made under an injurious mistake or ignorance of a material fact, may be avoided, even though the fact is not fraudulently concealed. But a mistake made through ignorance of the law, will not render a contract void.

§ 9. A valuable consideration, also, is necessary to a valid contract. A consideration is what is given or done, or to be given or done, as the cause or reason for which a person enters into an agreement. Thus, the money given or offered, for which a man agrees to perform certain acts or labor, is the consideration of the agreement. So the consideration of a promissory note is the property for which the note is given. A consideration may be something else than money; it is sufficient if it is any thing that is either a benefit to the party promising, or some trouble or injury to the party to whom the promise is made.

§ 10. Mutual promises, also, are sufficient considerations; but to be obligatory they must be made at the same time: and it is not sufficient if they are made on the same day, and at different times. But if mutual promises are made simultaneously, they support each other: the promise by one party constitutes a sufficient consideration for a promise by the other party. To this rule, however, there are ex

ceptions; one of which is, when a proposal is made by means of agents or letters, in case the parties are distant from each other. In such cases, if the proposition is made in writing, and sent by mail, and an answer of acceptance is written and put in the mail, the contract is complete, unless, before the mailing of the letter of acceptance, a second letter has been received, containing a retraction of the proposal.

11. Promises which are wholly gratuitous, are void; because, being neither a benefit to the promisor, nor an injury to the promisee, they are not regarded, in law, as a valuable consideration. Hence, subscriptions to public works, and charitable, literary, and religious institutions, if they are merely gratuitous, can not be collected, unless they have operated to induce others to advance money, make engagements, or do other acts to their own injury.

§ 12. As gratuitous promises are void for want of consideration, so merely gratuitous services afford no consideration upon which payment for their value can be lawfully claimed; there being no promise of compensation. Thus, voluntarily assisting to save property from fire, paying the debts of another without request, or securing beasts found straying, gives no lawful claim for recompense. But if a person knowingly permits another to do certain work, as plowing his field, or hoeing his corn, although the work may have been commenced without his order or request, his consent will be regarded, in law, as an implied promise to pay for the value of the labor, unless the circumstances of the case are such as to forbid the presumption.

§ 13. A consideration must not only be valuable; it must be possible, and in accordance with law, sound policy, and good morals. A contract founded upon an impossible consideration, is void. No man can be lawfully bound to do what is not in the power of man to do. But it is otherwise, if the thing to be done is only at the time impossible in fact, but not impossible in its nature. Hence, inability from sickness to fulfill an agreement, or the impossibility of procuring an article of a certain kind or quality which a person has agreed to deliver, would not exempt him from liability in damages for the nonperformance of his contract.

§ 14. A contract, the consideration to which is illegal or immoral, may be avoided by either party. A man can not

be held to an agreement to do acts forbidden by the law of God, or by the laws of the state. But if an illegal contract has been executed; that is, if the wrong has been already done, the party in the wrong cannot renounce the contract t; for the general rule is, that no man can take advantage of his own wrong; and the innocent party alone has the privilege of avoiding the contract. If both parties are guilty, neither can, in ordinary cases, obtain relief on a contract that has been executed,

§ 15. The rule that a consideration is necessary to the validity of a contract, applies to all contracts and engagements not under seal, except bills of exchange and negotiable notes after they have passed into the hands of an innocent indorsee. (See Promissory Notes.) In contracts under seal, a consideration is necessarily implied in the solemnity of the instrument.

16. It is declared by the English statute of frauds, which prevails generally in the United States, that no agreement that is not to be performed within one year from the time of making it, shall be valid, unless such agreement, or some memorandum or note thereof, is in writing, and signed by the party to be charged. The statutes of some of the states have adopted this provision of the English statute, and require, further, that a special promise to answer for the debt, default, or miscarriage of another person, and an agreement or promise upon consideration of marriage, except mutual promises to marry, shall likewise be void without such writing, in which the consideration shall be expressed.

CHAPTER LII.

CONTRACTS OF SALE.

§ 1. THE same general principles of law which apply to contracts in general, are applicable to contracts of sale The competency of the parties contracting; the sufficiency of the consideration in regard to its value, its legality and morality; the assent of the parties; and the absence of

fraud; which are requisite to the validity of the former, are necessary to that of the latter.

§ 2. A sale is a transfer of the absolute title of property for a certain price. Unless the absolute title is conveyed, the contract is merely a mortgage, or bailment, and not a sale. To make a sale valid, several things are necessary. The thing to be sold must have an actual or a possible existence, and be capable of delivery. Thus, if A sells a horse or certain goods to B; and if, at the time of the sale, the horse is dead, or the goods are destroyed; the sale is void. But if the goods are partially destroyed, the buyer may either take them at a proportionate reduction of the price, or abandon the contract.

§ 3. But, although the thing to be sold has no actual and present existence; yet if its future existence is possible, and if it is the product or increase of something to which the seller has a present right, it is a subject of sale. Thus, a man may sell the wool that shall grow on his sheep, the fruit that shall grow on his trees, or the future increase of his cattle. But he can not sell the products of the sheep or cattle which he may hereafter buy. A man may, however, agree to procure goods which he has not, and to furnish them at a future time for a certain price; and his contract will be good; though this is not strictly a sale, but only an agreement to sell.

§ 4. There can be no sale without a price; and the price must be fixed and definite, or susceptible of being ascertained by reference to some criterion prescribed in the contract, so as to render any further negotiation of the parties unnecessary. Thus, a man may agree to pay what shall be the market price at a particular time, or a price to be fixed by a third person. The price must also be payable in money or its negotiable representative, as notes or bills. One article given for another is merely a barter. The same principles of law, however, govern in both cases.

§ 5. There must be a mutual consent of the parties; and the contract is binding when a proposition made by one of the parties is accepted by the other. The negotiation of sale may be carried on by letter; and the sale becomes complete when the buyer puts into the mail his answer accepting the seller's proposition. But the buyer may retract his offer at any time previous to the mailing of the buyer's letter containing his assent. (See Chap. LI § 10.)

§ 6. In contracts of sale which are not perfected at once by payment and delivery, certain formalities are to be observed. These forms generally are prescribed by what is called the English statute of frauds, which requires, (1.) that the buyer shall accept and receive part of the goods sold; or (2.) give something in earnest to bind the bargain, or in part payment; or (3.) that some note or memorandum in writing of the bargain shall be made and signed by the party to be charged, or by his authorized agent. These provisions, however, apply only to cases in which the price of the goods is ten pounds sterling, or upward. The same rule prevails generally in this country, with slight variations: The price of the goods sold in cases to which the provisions of that statute apply, is fixed in each state by law.

§ 7. To complete a contract of sale, and pass the title to the property to the buyer, there must be a delivery of the goods sold. When the goods are such as can not be manually or immediately delivered, or are not in the personal custody of the seller, the law does not require an actual delivery. But they must be placed in the power of the purchaser; or there must be such acts and declarations of the parties as imply a change of ownership. When the right of property has been transferred to the buyer, whether by an actual or only a constructive delivery, he immediately assumes the risk of the goods; so that if they shall be afterward injured or destroyed, he must bear the loss.

§ 3. When nothing is said at the sale as to the time of delivery, or the time of payment, the buyer is entitled to the goods on payment or tender of the price, and not otherwise; for, though he acquires the right of property by the contract of sale, he does not acquire the right of possession, until he pays or tenders the price. But if the seller delivers the goods absolutely, and without fraudulent contrivance on the part of the buyer, the buyer will hold possession of them.

§ 9. But when goods are sold upon credit, and nothing is said as to the time of delivery, the buyer is immediately entitled to the possession. If, however, it is ascertained, before the buyer obtains possession of the goods, that he is insolvent, or that he is so embarrassed as to disable him from meeting the demands of his creditors, the seller