So it is sometimes agreed that any additions or alterations shall be paid for at the same rate as the work contracted for. But we think that the law would imply this agreement if the parties did not make it expressly, although this point is not well settled.

SECTION VI.

OF THE RIGHTS OF ONE WHO IS A STRANGER TO THE CONSIDERATION.

FORMERLY it was held that no one who was a stranger to the consideration could enforce a promise resting upon it. But this rule has been considerably relaxed, at least in this country. Thus, if A pays to B a consideration, and B thereupon promises to pay C a sum of money, it has been held that C may sue B upon this promise, whether the promise were made to A or to C. So where B gave to the lessee of certain premises a written promise to take the lease and pay to A, the lessor, the rent, with the taxes, according to the terms of the lease; and B afterwards entered into possession of the premises, and occupied them with the knowledge of A, it was held that A might recover rent from B on this promise. So if A, B, and C give a consideration jointly to D, whereupon D makes a promise to A, or B, or C, or any two of them, an action can be maintained on the promise by the party to whom it is given.

SECTION VII.

OF THE CONSIDERATION ARISING FROM DISCHARGING THE DEBT OF

ANOTHER.

IF A is compelled to do for B that which B should have done, and was under an obligation to do himself, A can now demand from B full indemnity or compensation; and, to enable him to enforce this claim, the law will imply or presume a request from B that A should do this thing, and also a promise from B to A of repayment or indemnity, which promise rests upon the sufficient consideration of A's doing, or undertaking to do, that thing; and the law will not permit the party to

deny the request or promise which it thus presumes. This rule applies to all cases in which a surety or guarantor pays or does for his principal that which the principal undertook to do, and the surety undertook that he would do for the principal if the principal did not do it. The law considers that this request of the principal to the surety, and also this promise of indemnity, belong necessarily to such a relation.

But the rule is quite otherwise where A without compulsion does for B what B was under an obligation to do for himself; as if A voluntarily pays to C a debt due from B to C. Here the law will not presume or imply both the request and the promisc. If, therefore, neither be proved, A cannot enforce repayment from B; and the reason is that A cannot, as was before remarked, make himself the creditor of B without B's assent. And this reason is more than merely technical, for B may have good ground for preferring to be the debtor of C, rather than of A. But if A can prove either the request or the promise, the law will conclusively presume the other. Thus, if A can prove that B requested him to pay his debt to C, the law will presume B's promise of repayment; or if A can prove that B promised to A a repayment, the law will consider this as an acknowledgment and acceptance of the payment as a service rendered to him, and will thereupon presume a previous request to A. And in either case A can recover from B on this promise.

CHAPTER VI.

OF SALES OF PERSONAL PROPERTY.

SECTION I.

WHAT CONSTITUTES A SALE.

IT is important to distinguish carefully between a sale and an agreement for a future sale. This distinction is sometimes overlooked; and hence the phrase "an executory contract of sale," that is, a contract of sale which is to be executed hereafter, has come into use; but it is not quite accurate to speak of this as if it were a sale. Every actual sale is an executed contract, although payment or delivery may remain to be made. There may be an executory contract for sale, or a bargain that a future sale shall be made; but such a bargain is not a present sale; nor does it confer upon either party the rights or the obligations which grow out of the contract of sale.

A sale of goods is the exchange thereof for money. More precisely, it is the transfer of the property in goods from a seller to a buyer, for a price paid, or to be paid, in money. It differs from an exchange in law; for that is the transfer of chattels for other chattels; while a sale is the transfer of chattels for that which is the representative of all value.

Here we must pause to speak of the legal meaning of the word "property." It is seldom or never used in the law as it is in common conversation, to mean the things themselves which are bought, or sold, or owned. Because in law it means the ownership of the things, and not the things themselves. In conversation one might say a thief had the property of such a person; or that a thief had stolen the property of such a perBut in law this can never be said. For in law the property is the right, the ownership; and that no thief can take from the true owner, though he may take the things themselves. So if one sells a horse to another, to be delivered a

son.

month hence, the moment the sale is made the property in the horse is said to pass from the seller to the buyer, although the horse himself remains behind. Thus the possession is one thing, the property is another, and the thing itself a third. And they all may be separated If A sells a horse to B, to be delivered a month hence, and A keeps the horse at livery in a stable, the stable-keeper has the horse in his stable; but he is only the agent of A, and his possession is the possession of A, who is said to have constructive possession of the horse; and the buyer alone had the property in the horse as soon as the bargain was made.

This is indeed the very essential test of a sale. If a bargain transfers the property in the thing to another person for a price, it is a sale; and if it does not transfer the property, it is not a sale; and, on the other hand, if it be not a sale, it does not transfer the property. As soon as a thing is sold, the buyer owns it, wherever it may be. And to constitute a sale at common law, all that is necessary is the agreement of competent parties that the property (or ownership) in the subject-matter shall then pass from the seller to the buyer for a fixed price.

The sale is made when the agreement is made. The completion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By the mutual assent of the parties to the terms of the sale, the buyer acquires at once the property and all the rights and liabilities of property; so that, in case of any loss or depreciation of the articles purchased, the buyer will be the sufferer, as he will be the gainer by any increase in their value.

It is, however, as has been said, a presumption of the law, that the sale is to be immediately followed by payment and delivery, unless otherwise agreed upon by the parties. If therefore nothing appears but a proposal and an acceptance, and the vendee departs without paying or tendering the price, the vendor may elect to consider it no sale, and may, therefore, if the buyer comes at a later period and offers the price and demands the goods, refuse to let him liave them. But a credit may be agreed on expressly, and the seller will be

bound by it; and so he will be if the credit is inferred or implied from usage or from the circumstances of the case. And if there be a delivery and acceptance of the goods, or a receipt by the seller of earnest, or of part payment, the legal inference is that both parties agree to hold themselves mutually bound by the bargain. Then the buyer has either the credit agreed upon, or such credit as from custom or the nature or circumstances of the case is reasonable. But neither delivery, nor earnest, nor part payment, is essential to the completion of a contract of sale. They only prevent the seller from rescinding the contract of sale without the consent of the purchaser. Their effect upon sales under the provisions of the Statute of Frauds will be considered in the chapter on that subject.

SECTION II.

OF THE RIGHTS OF PROPERTY AND OF POSSESSION.

BECAUSE this distinction is so absolutely indispensable to any correct understanding of the Law of Sales, and at the same time is one of the nicest and most difficult that is known in the law-merchant, we repeat that the word property is used in law in a strict and peculiar sense. It does not mean the thing owned, but the interest in that thing, or the ownership of it; and, as we have said, property, or the right of property, may be, and often is, severed from the right of possession. One instance of this we have already given. So where the owner of a horse lets him out on hire for a week; the ownership or property of the owner is unaffected by this, but the hirer has for that week not only the possession, but the right of possession. When however a sale is completely made, the property in the goods passes, as we have seen, from the seller to the buyer; that is, the buyer becomes at once the owner of the goods. But the possession may not pass to the buyer; and the right of possession does not pass to him, until he pays the price, unless it be a sale on credit. If there be no credit, the seller acquires at once a right to the price; the buyer acquires at once the right of property; and he may unite the right