All that is essential to the sale of a chattel, at common law, is the agreement of the parties that the property in the subject-matter should pass from the vendor to the vendee for a consideration given, or promised to be given, by the vendee. Yet where the parties have not explicitly manifested their meaning, the law makes some important inferences. There is a presumption that every sale is to be consummated at once; that the chattel is to be delivered, and the price paid, without delay. If, therefore, nothing appears but an offer and an acceptance, and the vendee goes his way without making payment, it is held to be a breach of the contract (which is presumed to have contemplated payment on the spot), and the vendor is not bound by the sale. But if there was a delivery of the chattel, or the receipt of earnest, or of part payment, either of these is evidence of an understanding that something should remain to be performed in futuro; and the legal presumption is rebutted. Where the terms of the contract expressly postpone delivery, or payment, or both, to a future day, here also the sale is valid, and no legal presumption obstructs the intention of the parties, but the property in the chattel sold passes immediately. In this case no earnest is necessary to bind the bargain. (a) The * effect of the Statute of
(a) The law of sales, as it stands at this moment at the common law, is at least as old as the Year-books. In 14 H 8, 17 b, 21 b in the Common Pleas, the law upon this subject is thus stated by Pollard, J.: " Bargains and sales all depend upon communication and words between the parties; for all bargains can be to take effect instantly, or upon a thing to be done thereafter. They can be upon condition, and they can also be perfect; and yet no quid pro quo immediately. And all this depends upon the communication between you and me; as that I shall have £20 for my horse, and I agree; now if you do not pay the money immediately, this is not a bargain; for my agreement is for the £20, and if you do not pay the money straightway, you do not act according to my agreement I ought, however, in this case, to wait convenient leisure, to wit, until you have counted your money. But if you go to your house for the money, am I obliged to wait? No, truly; for I would be in no certainty of my money or of your return; and therefore it is no contract unless this [delay] be agreed at the comFrauds, in modifying the principles of the common law in relation to sales, will be considered hereafter.
It must be remembered, that no one can give what he has not himself; and therefore no one can give good title who has do good title.1 If a mere finder, and still more if a thief, Bella what he has found or stolen, to A, and A buys in good faith, and so sells to B, and B to C, and C to D, etc., the original owner may reclaim his property wherever it may be, and take it without any payment to the holder, any more than if that holder were the thief himself. (b) In England, a sale in market overt changes the property and divests the owner of his rights; but we have no market overt in this country. (c)2 It has even been held, that an auctioneer selling stolen goods, and paying over the money to the thief in good faith, is liable in trover to the true owner of the goods; (d) but this is certainly very severe. It has also been held that one who innocently buys a stolen horse, and sells him for value, is liable to the owner for his value. (dd) If the owner has been deceived and defrauded into parting with his property, so that he could claim it from the taker, yet if he voluntarily parted with the property, he cannot reclaim it from one who in munication. But if I sell my horse to you for so much as J. at S. shall say, this is good if he does say, and if not, void; and thus a contract can be good or void, depending upon matter subsequent. Likewise if I sell my horse for £10 to be paid on a day, now this is good; and yet there is no quid pro quo immediately." In the same case, Brudnel, C. J., said: " As has been said, bargains and sales are as is concluded and agreed among the parties, - as their intentions can be gathered. For if I sell my horse to you for £10, and we both are agreed, and I accept a penny in earnest, this is a perfect contract; you shall have the horse, and I shall have an action for the money. But if I wish to sell ray horse to you for £10, and you say that you will give £10 for him, and I say that I am content; still, if you do not pay the money now, but depart from the place, this is no bargain, for I am only content that you should have my horse for £10, and notwithstanding yon say you are content, the transaction is yet not perfect; for you do not pay the money, and so do not perform the agreement." See also Shop.
Touch, p. 224. And also Noy, Maxims, p. 88. And see Duncan v. Lewis, 1 Du-vall, 183; Martin v. Hurlbut, 9 Minn. 142.
(b) McGrew v. Browder, 14 Mart. (La.) 17; Roland v. Gundy, 5 Ohio, 202; Browning v. Magill, 2 liar. & J. 308; Dame v. Baldwin, 8 Mass. 518; Wheelwright v. Depeyster, 1 Johns. 479; Hosack v. Weaver, 1 Yeates, 478; Easton v. Worthington, 5 S. & R. 130; Lance v. Cowan, 1 Dana, 195; Ventress v. Smith, 10 Pet. 161; Nixon v. Brown, 57 N. H. 34; Coombs v. Gorden, 59 Me. 111; Barker v. Dinsmore, 72 Pa. 427; Qninn v. Davis, 78 Pa. 15; Mechanics', etc. Bank v. Farmers', etc. Bank, 60 N. Y. 40.
(c) See the cases cited in the last note. Also Hargreave v. Spink,  1 Q. B. 25.
(d) Hills v. Snell, 104 Mass. 173; Pease v. Smith, 61 N. Y. 477; Hoffman v. Carrow, 22 Wend. 285; Consolidated Company v. Curtis,  1 Q. B. 495.
(dd) Robinson v. Skipworth, 23 Ind. 311; Sharp v. Parks, 4S Ill. 511.
1 Bearce v. Bowker, 115 Mass. 129; Moody v. Blake, 117 Mass. 23, 26; Prime v. Cobb, 63 Me. 200; Bryant v. Whitcher, 52 N. H. 158, 161; Klein v. Seibold, 89 Ill. 540. See Nixon v Brown, 57 N. H. 34; West. Un. R. Co. v. Wagner, 65 Ill. 197, - K.
2 But such a sale does not protect the seller. Ganly v. Ledwidge, Ir. R. 10 C. L. 33. - K.
good faith buys it of the fraudulent party; and not even if the fraud amounted to felony. (e) And this rule has been applied where it was not a buyer, but a creditor who took the goods in payment of a debt. (ee) But we think this may be questioned. But it is said that a vendee with possession and a right to acquire title by a subsequent act cannot before that act give title against his vendor to a bond fide purchaser. (ef) It should also be stated that no one can be made to buy of another without his own assent. Thus if A sends an order to B for goods and C sends the goods he cannot sue for the price if A repudiates the sale, although C had bought B's business. (/)
We will now proceed to treat of an absolute sale, and then of a conditional sale of a chattel.