This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
This section of the statute includes sale proper, that is, transfer of the title to personalty in consideration of a price in money.1 It also includes barter, or conveyance of the title to personalty in consideration of a conveyance, in return, of title to other personalty.2 A contract to transfer the title to certain goods in payment of an antecedent debt is held to be a sale within the meaning of this section.3 Other contracts for paying a debt by transferring personalty have been held not to be within the statute. Thus a contract of employment by the terms of which the employee was to be paid partly in cash and partly in corporation stock is not a sale of such stock within the meaning of this section.4
13 See Sec. 676.
14Packet Co. v. Sickles, 5 Wall. (U. S.) 580; Wilkinson v. Heaven-rich. 58 Mich. 574; 55 Am. Rep. 708; Cowles v. Warner, 26 N. W.
139; 22 Minn. 449; Blanding v. Sargent, 33 N. H. 239.
1 English Statutes. Revised Edition. (By authority) I, 777.
A contract which does not attempt to pass title to a chattel from one of the contracting parties to the other, or to provide for passing such title, is not a contract of sale. Thus a contract between a debtor and his attaching creditor, by which the creditor agrees to account to the debtor for the cost price of the goods sold, no matter what the selling price might be, and to credit him with all sums received on book accounts;5 or a contract between two judgment-creditors that the property should be sold on execution issued on one of the judgments,6 are none of them within the statute.
A contract to give a chattel mortgage has been held not to be within the statute.7 So a contract to extend the time of paying the mortgage debt, even after foreclosure, is not within the statute.8 A clause in the original contract of sale providing for a rescission of the contract upon the happening of some event, the original vendor agreeing to take back the goods and refund the purchase-money, is not a sale within this section.9 A subsequent rescission of an executed contract of sale has been held not to be a sale. Thus where A sold and delivered to a firm of which he was a member, goods for which he was not paid, a subsequent oral contract of rescission as part of the contract of dissolution was held not within the statute.10 If, instead of a contract for rescission, the agreement is one for a re-sale, it is of course within the statute.11
1 Stewart v. Cook, 118 Ga. 541; 45 S. E. 398.
2 Raymond v. Colton, 104 Fed. 219; 43 C. C. A. 501; Kuhns V. Gates, 92 Ind. 66; Dowling v. Mc-Kenney, 124 Mass. 478; Gorman v. Brossard, 120 Mich. 611; 79 N. W. 903; Harris Photographic Supply Co. v. Fisher, 81 Mich. 136; 45 N. W. 661; Ash v. Aldrich, 67 N. H. 581; 39 Atl. 442.
3 Norton v. Davison (1899), 1 Q. B. 401; Galbraith v. Holmes, 15 Ind. App. 34; 43 N. E. 575; Gorman v. Brossard, 120 Mich. 611; 79 N. W. 903; Brabin v. Hyde, 32 N. Y. 519; Milos v. Covacevich, 40 Or. 239; 66
Pac. 914; Norwegian Plow Co. v. Hawthorn, 71 Wis. 529; 37 N. W. 825. Whether the agreement to apply the price of the goods to the debt amounts to a part payment or not is another question. See Sec. 706.
4 Spinney v. Hill, 81 Minn. 316; 84 N. W. 116.
5 Jacobs Sultan Co. v. Mercantile Co., 17 Mont. 61; 42 Pac. 109;
6Mygatt v. Tarbell, 78 Wis. 351; 47 N. W. 618.
7 Bates v. Wiggin, 37 Kan. 44; 1 Am. St. Rep. 234; 14 Pac. 442; Sparks v. Wilson, 22 Neb. 112; 34 N. W. 111.
Executory contracts of sale, in which the title is not to pass till some future time, were held by the early English authorities not to be within the statute.12 This view has been abandoned in England13 and has never been entertained in the United States. The statute is held here to include executory contracts of sale as well as executed contracts.14