§ 992. The thing to be sold must have an actual or possible existence, and must be capable of delivery. Thus, if A. sell a horse or certain goods to B., and at the time of the sale the horse be actually dead, or the goods be destroyed, the sale would be void, even though it be made without fraud.1 But if such goods be partially destroyed at the time of the sale, the buyer may either take them at a pro tanto reduction of the price, or he may abandon the contract.2 So, also, although the thing to be sold have no actual and present existence, yet if it be the anticipated product or increase of some thing to which the seller has a present vested right, the sale will be good. Thus a sale may be made of all the wool that shall grow on the sheep owned by the seller at the time of the sale, or of all the young that shall be born of them. So, also, a sale of the fruit that shall grow on the seller's vines, or of the wine which the grapes from his vines shall yield, is good.3 So, also, a sale may be made of any indeterminate thing, to which the vendor's right is not contingent; as of the casting of his net by a fisherman.4 But a mere possibility or contingency, not coupled with any present interest in the property, or not growing out of property which the seller already owns, cannot be the subject of a present sale, though it may be of an executory agreement to sell.6 Thus, a man cannot sell all the wool of
1 Allen v. Hammond, 11 Pet. 63; Pothier, Contrat de Vente, § 4; Hitchcock v. Giddings, 4 Price, 135. See ante, Mistake; 2 Kent, Comm. 469.
2 2 Kent, Comm. 469; Pothier, Contrat de Vente, No. 4; Compton v. Burn, 1 Esp. Dig. 38, cited in 1 T. R. 136.
3 Long on Sales, Rand's ed. 4; 2 Kent, Comm. 468, n. b; Pothier, Contrat de Vente, No. 4, 5; Com. Dig. Grant, C; Clapham v. Moyle, 1 Lev. 155; Grantham v. Hawley, Hob. 132; Robinson v. Macdonnell, 5 M. & S. 228, 236; Wood & Foster's Case, 1 Leon. 42; Strickland v. Turner, 7 Exch. 208; 14 Eng. Law & Eq. 471.
4 Plutarch's Life of Solon; Pothier. Contrat de Vente, No. 6.
5 Comm. Dig. Grant, D., Assignment, C. 3; Vasse v. Comegys, 4 Wash. 570; Robinson v. Macdonnell, 5 M. & S. 228; Campbell v. Mullett, all the sheep that he may hereafter buy,1 or any thing else of which he has merely a prospective interest, without any present right. So, also, he cannot make a present sale of goods to which he has no present or contingent right, but which he intends to go into the market and buy.2 But he may agree to procure goods which he has not, and to furnish them at a future time for a certain price, and this contract will be good; although it will not be strictly a sale, but only an agreement to sell. So a contract to sell gold, deliverable at a future day, like a contract for a similar sale of stock, is not illegal at common law.3 A contingent future right to an actual thing, as a reversionary interest or expectancy, founded upon a settlement or entailment, is also a subject of sale.4 But a mere hope of succession, without any existing right, can only be the subject of an executory contract.6
§ 993. So, also, the subject of a sale must be legal, or the sale will be void. Thus, where bricks were sold of other dimensions than those required by statute, 17 Geo. III. ch. 42, under a penalty, it was held that an action for the price could not be supported.6 So, also, when the selling of game was prohibited by the statute, a contract for the sale of pheasants was held to pass no property.7 But where a stock of goods is sold at a distinct and separate price for each article, and the sale of some of those articles is illegal, an action may nevertheless be maintained for the value of the balance of the sale.1 But an owner of personal property, tortiously converted by another, may make a valid sale of it. Such a sale is not a sale of a right of action, but a sale of the property itself.2
2 Swanst. 651; Mucklow v. Mangles, 1 Taunt. 318; Atkinson v. Bell, 8 B. & C. 277; 2 Kent, Comm. 466; Carleton v. Leighton, 3 Mer. 667; Rondeau v. Wyatt, 2 H. Bl. 63; Groves v. Buck, 3 M. & S. 178.
1 Grantham v. Hawley, Hob. 132; Bac. Abr. Grant, D.; 2 Story, Eq. Jur. § 1040, 1055 b; Langton v. Horton, 1 Hare, 549, 556; Trull v. Eastman, 3 Met. 121. But see Hibblewhite v. M'Morine, 5 M. & W 462; Screws v. Roach, 22 Ala. 675; Stanton v. Small, 3 Sandf. 230.
2 And it is doubtful if the purchaser in such case would even get a title by estoppel against the seller. See Bigelow on Estoppel, 363.
3 Appleman v. Fisher, 34 Md. 540 (1871); Hibblewhite v. M'Morine, 5 M. & W. 462; 6 M. & W. 200.
4 Carleton v. Leighton, 3 Mer. 667; Curtis v. Curtis, 40 Me. 24.
5 2 Story, Eq. Jur. § 1040, 1040 b, 1055; Langton v. Horton, 1 Hare, 549, 556, 557; Trull v. Eastman, 3 Met. 121; 2 Kent, Comm. 468.
6 Law v. Hodson, 11 East, 300; 2 Camp. 147.
7 Helps v. Glenister, 8 B. & C. 553. So, also, see, generally, Langton v. Hughes, 1 M. & S. 593; De Begnis v. Armistead, 10 Bing. 107; Brown v. Duncan, 10 B. & C. 93; The King v. Major, 4 T. R. 750; Tyson v. Thomas, M'Clel. & Y. 119. See ante, Illegal Contracts.
1 Boyd v. Eaton, 44 Me. 51 (1857).
2 Tome ». Dubois, 6 Wall. 548 (1867). See Carpenter v. Hale, 8 Gray, 157.