The Uniform Sales Act94 states the rule applicable to an attempted sale of non-existent goods.

Section 7.-[DESTRUCTION OF GOODS SOLD.] (1.) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void.

v. Clay, 7 Beav. 188; Moehlenpah v. Mayhew, 138 Wis. 561,119 N. W. 826. See also Fleetwood v. Brown, 109 Ind. 567, 9 N. E. 352, 11 N. E. 779), or annuity (Strickland v. Turner, 7 Ex. 208), or insurance policy (Scott v. Coulson, [1903] 2 Ch. 249; Riegel v. American life Ins. Co., 140 Pa. 193, 21 Atl. 392, 11 L. R. A. 857, 23 Am. St. Rep. 225), is bargained for under a mutual mistake as to the existence of the life tenant or annuitant or person insured, the thing which the parties were bargaining for may fairly be said not to have existed. Other cases may easily be supposed where a mutual mistakes. as to the existence of a person while not affecting the character of the promised performance would make the performance impossible,- e. g.t a contract to paint a portrait of a third person who unknown to the parties to the contract is dead. In still other cases such a mistake would merely affect the value of the performance, e. g. a contract to buy and sell stock in a company of which the president, whose management largely contributed to the value of the stock, unknown to the parties, had died.

94 The States where this statute is in force are enumerated, supra, Sec. 506.

(2) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale -

(a) As avoided, or

(b) As transferring the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible or to pay the agreed price for the goods in which the property passes if the sale was divisible.96

Section 8 - [DESTRUCTION OF GOODS CONTRACTED TO BE SOLD.] (1) Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided.

(2) Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract - 96

(a) As avoided, or tion on his part that he will necessarily wish to avail himself, so that the bargain is in effect void. The seller is excused from any such obligation by the doctrines both of impossibility and mistake. As the obligation would relate to a specific thing, the nonexistence of the thing, without his fault, excuses him.1 Apart from the doctrine of impossibility the mutual mistake under which the parties labored would excuse the seller from any obligation. On the part of the buyer there is no question of impossibility. It is entirely possible for him to pay the price. If the promise, however, was expressly or impliedly conditional upon the transfer of title, which would generally be the case, the nonperformance of this condition, for whatever reason, would necessarily excuse him.2 Even though his promise to pay the price was not conditional, the destruction of the goods for which the price was to be paid would be such failure of consideration as to excuse him from paying the price if he had not already paid it, and would justify him in recovering it if he had already paid it.3 The doctrine of mutual mistake would also excuse the buyer as well as the seller. It is not accurate, however, to say that there is no mutual assent;4 the parties do, in fact, assent to the same thing. The mistake which they make is ground for excusing them from the bargain they made. It is not a ground for saying they never made a bargain.5

(b) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible.97

95 Subsection (1) corresponds to section 6 of the English Sale of Goods act, except that "the parties purport to sell" has been substituted in the first line for the words "there is a contract for the sale of," and "agreement" is twice substituted in the last line, for "contract." The other provisions of the American section are new.

96 This clause "applies where the specific goods perished after the contract was made or so greatly deteriorated in quality as to be substantially changed in character." Automatic Time Table Advertising Go. v. Automatic Time Table Co., 208 Mass. 252, 94 N. E. 462.

97 Subsection (1) corresponds to section 7 of the English statute with changes of phraseology similar to those referred to in the preceding note; and

An agreement, other than a sale, which requires for its performance the existence of a specific thing would doubtless be governed by the same principles.