§ 990. The next subject of which we propose to treat is the Contract of Sale of Personal Property.1 Any person who can make any other contract may make a contract of sale. The doctrines of law applicable to contracts in general in regard to the competency of parties, the immorality or illegality of the contract, and the fraud of the parties, are equally applicable to the contract of sale; and will not be considered under this head.
§ 991. A sale is a transfer of the absolute title to property for a certain agreed price.2 Unless the absolute title be conveyed, the contract is merely a mortgage or bailment, and not a sale.3 Three things, therefore, are requisite to a valid sale: 1st. The subject to be sold; 2d. The price; 3d. The mutual consent of the parties. We shall consider these in order.
1 For a full consideration of this subject, see Story on Sales of Personal Property.
2 As to the difference between a sale and an exchange, see Vail v. Strong, 10 Vt. 457; Mitchell v. Gile, 12 N. H. 390. A contract for an exchange of lands is as much within the Statute of Frauds as a contract for their sale for money. Purcell v. Miner, 4 Wall. 513 (1866). But see Moss v. Culver, 64 Penn. St. 414 (1870). If A. and B. own a horse in common, and B. takes it into his possession under an agreement to return the next week and either buy A. 's half or sell A. his half, but fails to meet his agreement, this does not constitute a sale or purchase of one-half, but a mere verbal agreement to trade. Whitmore v. Alley, 46 Me. 428 (1859). And where a creditor gave to his debtor a writing in which he acknowledged that he had received a horse from him and would return it within a specified time or pay the debt, while the horse in fact belonged to the creditor, it was held that the writing was not a bill of sale or a mortgage, and that by it no interest in the horse passed to the debtor. Crane v. Pearson, 49 Me. 97 (1861).
3 See Schenck v. Saunders, 13 Gray, 37 (1859).