tract and positive undertaking create a duty or charge upon themselves, they must abide by the contract and make the promise good, and either do the act or pay the damages.'

149. Sale of Goods to be appraised. - Contracts for the future sale of goods subject to the approval or to the appraisal of a third person illustrate this class of conditions. If the parties "agree on a method of settling the price irrespectively of anything to be done by themselves, it is the same between them when subsequently settled as if the sum had been an original condition of the bargain; but if the person to whom the naming of it was referred die in the meantime, or refuse to act, the contract is at an end. Such a sale is conditional, but not executory, like a contract to sell at a day to come, which is complete in itself, though some act remain to be done in pursuance of it; on the contrary, it is a contract which, being imperfect in itself as regards one of its terms, is to take effect only when the deficiency is supplied by the performance of a condition precedent, the prevention of which, by the act of Providence or the obstinacy of the agent, defeats the sale entirely." Hence, until the agreed person names the price,2 no obligation attaches to either seller or buyer; and the latter has no interest in the goods, which may have been set apart by the seller for him, nor has he a right of action arising out of the contract. If either party, however, wrongfully prevents a valuation of the goods by the appraiser, he renders himself liable to an action for damages; and if the buyer has received

4

1 Summers v. Hibbard, 153 Ill. 152; 38 N. E. 899 (1894); Burdick's Cases on Sales, 267; Augusta Factory v. Mente & Co., 132 Ga. 503; 64 S. E. 553 (1909); Bell v. Jordan, 102 Me. 67; 65 At. 759 (1906); Isaacson v. Starrett, 56 Wash. 18; 104 Pac. 115 (1909), performance was rendered impossible by the earthquake of April 18, 1906, which destroyed the seller's plant, and by subsequent strikes of employees. Menz Lumber Co. v. McNeeley & Co., 58 Wash. 223; 108 Pac. 621 (1910).

2 Smyth v. Craig, 3 W. & S. (Pa.) 14, 20 (1841); cf. Vickers v. Vickers, L. R. 4 Eq. 529 (1867); Burdick's Cases on Sales, 272.

Davis v. Davis, 49 Me. 282 (1862).

4 Sale of Goods Act, § 9 (2); Holliday v. Marshall, 7 Johns. (N. Y.) 211 (1810). "Although the covenant provided for an appraisement of the improvements, in case the land was not sold to the plaintiff, yet the defendant was not a party to the appraisement. He refused to unite in it, and there is nothing in the covenant making an ex parte appraisement

and appropriated any of the goods, he becomes liable for the fair value of such portion.1

150. Sale of Goods to be approved by a Third Person. — The foregoing doctrine applies to contracts for the sale of goods to be approved by a third person. Hence, an agreement for the purchase of a specified horse for a stipulated price, “provided that within a month he trots 18 miles within one hour, and J. N. to be the judge of the performance," imposes no obligation on either party if J. N. refuses to act.2 Nor can a recovery be had upon the contract in England, even if the refusal of the third person to act is caused by the wrongful interference of one of the parties. Resort must be had to an action for damages.*

In this country, however, if the third person withholds his approval "from motives of selfish interest, bias, partiality, or corruption, the party prejudiced by such action may, notwithstanding the absence of such approval, recover on the contract for the non-acceptance of the article furnished. In such contracts, it is an implied condition that the person designated to approve shall act with entire good faith to both of the contracting parties. Both parties have the right to insist upon such good faith, and the want of it will dispense with the condition requiring the approval." 5 If the goods, or any portion of them, have been received and retained by the purchaser, it has been held that he must pay the contract price."

binding on the defendant. . . . The plaintiff's claim is, therefore, to be considered as resting in unliquidated damages" (p. 213). Cf. Uniform Sales Act, Mass. L. 1908, ch. 237, § 10 (2); "the party not in fault may have such remedies against the party in fault as are allowed by Parts IV and V of this Act."

1 Kenniston v. Ham, 29 N. H. 501, 506 (1854); Burdick's Cases on Sales, 273; Sale of Goods Act, § 9 (1); Uniform Sales Act, § 10 (1); "he must pay a reasonable price therefor."

272.

Brogden v. Marriott, 2 Bing. N. C. 473; 3 id. 88 (1836).

Vickers v. Vickers, L. R. 4 Eq. 529 (1867); Burdick's Cases on Sales,

Batterbury v. Vyse, 2 H. & C. 42; 32 L. J. Exch. 177 (1863); Ludbrook v. Barrett, 46 L. J. C. P. 798 (1877).

Balt. Ry. v. Brydon, 65 Md. 198, 227 (1885).

Badger v. Kerber, 61 Ill. 328 (1871). See Gearty v. Mayor, etc. of N. Y., 171 N. Y. 61, 71–72; 63 N. E. 804 (1902).

151. Effect of Third Party's Decision. When the third party acts in good faith, his decision is final, although it may be erroneous.1 An English writer 2 declares: "There is a great practical difference between the case of an executory contract for sale, and that of a contract for work to be done, e. g., upon the house or land of another. When there is a contract for work to be done, and the payment for the work is conditioned upon the act of a third party, the contractor may lose the fruit of his labor altogether if the condition fails without the fault of the other. . . . In the case of an executory sale of goods, however, . . . the seller is simply left with the goods on his hands." The contractor for work to be done would not lose the fruit of his labor in this country.3

152. Contracts conditioned upon the Goods being satisfactory to the Buyer may be considered in this connection.-At times they expressly provide that there shall be no sale unless the article satisfies the purchaser. Even in the absence of such explicit language, the intention of the parties appears to be, that while the seller shall be bound to furnish the described article, and the purchaser to inspect 5 or test it, if these are done and the purchaser is dissatisfied with it, no other contract obligation shall attach to either party.

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It is sometimes said that the seller does not perform his contract, in case he fails to satisfy the purchaser. This statement assumes that the condition is promissory; when in fact it is contingent or casual. It does not give the purchaser the right to refuse the goods and also to claim damages for a breach of contract by the seller. It suspends the obligations 3 (save

8

1 N. E. Trust Co. v. Abbott, 162 Mass. 148, 154; 38 N. E. 432 (1894). 2 Campbell on Sales (2d ed.), 434.

United States v. Robeson, 9 Pet. (U. S.) 319, 326 (1835); Sullivan v. Byrne, 10 S. C. 122 (1877), and similar decisions.

4 Wood Co. v. Smith, 50 Mich. 565, 569 (1883).

School Furniture Co. v. Warsaw Sch. D., 130 Pa. St. 76, 93 (1889); Haney-Campbell Co. v. Preston, 119 Ia. 188; 93 N. W. 297 (1903). Daggett v. Johnson, 49 Vt. 345 (1877).

7 McClure v. Briggs, 58 Vt. 82, 87; 2 At. 583 (1886).

8 Exhaust Co. v. Chicago Co., 66 Wis. 218, 225, 226; 34 N. W. 509. "We think the true rule in such a case is that if the fans are not honestly and in good faith satisfactory to the defendant, and the defendant

those above noted) of both parties, until the purchaser's satis

faction is gained or waived. retaining the goods.2

3

The condition may be waived by

In a recent English case Lord Blackburn lays down the general rule that where "it appears that both parties have agreed that something shall be done, which cannot be effectually done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect." Applying this rule to a contract for the sale of a digging machine, on condition that it should be capable of excavating a given quantity of clay in a fixed time on a properly opened up face at C., it was held that the buyer must pay for the machine, although its capability of doing the stipulated work had not been demonstrated, because the seller had been prevented from performing the condition, by the buyer's refusal or neglect to furnish the means of applying the stipulated test.

153. Judicial Construction of these Contracts. - Contracts of the kind now under consideration often prove very unprofitable to the seller. In such cases, he is apt to insist that the condition is fulfilled if the goods are such as ought to satisfy the purchaser, whether they do satisfy him or not; and some courts have upheld him in this contention. They have refused to apply to such agreements the ordinary canons of construction, but,

5

notified the plaintiff of the fact in a reasonable time, then and in that case there had been no sale." See Hoffman v. Gallaher, 6 Daly (N. Y.), 42-44 (1875).

1 Supra, ¶ 97.

2 Campbell Co. v. Thorp, 36 Fed. 414 (1888); Burdick's Cases on Sales, 274.

• Mackay v. Dick, 6 App. Cas. 251, 263 (1881); cf. De La Vergne, etc. Co. v. New Orleans, etc. Ry., 51 La. Ann. 1733; 26 So. 455 (1899).

♦ Duplex Co. v. Garden, 101 N. Y. 387; 4 N. E. 749 (1886). "Another rule has prevailed where the object of a contract was to gratify taste, serve personal convenience, or satisfy the individual preference" (p. 390); Gearty v. Mayor, etc. of N. Y., 171 N. Y. 61, 72; 63 N. E. 804 (1902); Oswego Falls P. & P. Co. v. Stecher L. C., 146 App. D. 241; 130 N. Y. Supp. 897 (1911); Kupfer v. Mich. Clothing Co., 141 Mich. 325; 104 N. W. 582 (1905).

Compare Campbell Co. v. Thorp, 36 Fed. 414, 418; on Sales, 274 (1888), with Hawkins v. Graham, infra.

Burdick's Cases

examining them in the light of the fierce competition developed by modern business methods, have reached the conclusion that even carefully worded expressions in written instruments are to be deemed, not the sober language of a contract, but a drummer's hyperbole.' Such, however, is not the prevailing view, which is, that the buyer stipulates for the absolute right of rejection, acting in good faith.2

§ 3. Promissory Conditions binding on the Seller.

154. To confer Title on the Buyer. That this is one of the fundamental engagements of the seller is apparent from the nature of the sale contract. Persons who enter into an agreement for the sale and purchase of a horse intend to effect a transfer of the general property in that horse, not to sell and buy a lawsuit. Hence, "unless the circumstances of the con

1 Hawkins v. Graham, 149 Mass. 284, 287; 21 N. E. 312 (1889). In this case, as in Duplex Co. v. Garden, supra, and in Iron Co. v. Best, 14 Mo. App. 503 (1884), the contract was not for the sale of a chattel, which would be left in the seller's possession upon its rejection by the buyer as unsatisfactory, but for an addition to the buyer's realty, so that the materials and services of the plaintiff would be largely or wholly lost, unless paid for by the defendant. Cf. Campbell on Sales (2d ed.), p. 434, supra, ¶ 151.

• Inman Mfg. Co. v. Am. Cereal Co., 124 Ia. 737; 100 N. W. 860 (1904); Kidder Press Co. v. Reed & Co., 133 Ky. 350, 358; 117 S. W. 950 (1909); Thurman v. Omaha, 64 Neb. 496; 90 N. W. 253 (1902); Potter Printing Press Co. v. Newark D. A. P. Co., N. J. L.; 83 At. 969 (1912); Pennington v. Howland, 21 R. I. 65; 41 At. 891 (1898); Carpenter v. Virginia-Carolina Co., 98 Va. 177; 35 S. E. 358 (1900); Tatum v. Geist, 46 Wash. 226; 89 Pac. 547 (1907); Osborne Co. v. Francis, 38 W. Va. 312; 18 S. E. 591 (1893); Rondinella v. Southern Ry., 33 App. D. C. 65, 78 (1909).

Edwards v. Pearson, 6 Times Law R. 220 (1890); Burdick's Cases on Sales, 679. The court consisted of Lord Coleridge, C. J., and Lord Esher, M. R. Counsel for the seller argued that "in our law it is held that the purchaser buys the horse as it is. (Lord Esher. Not a horse which belongs to the seller?) No; it has been held in effect that he only buys the bargain. (Lord Esher. That is, a lawsuit? I should think that in real truth he intends to buy the horse.) If the purchaser in such a case intends to buy the horse, no more can be said. (Lord Esher. We think so.)" Cf. L'Apostre v. L'Plaister (1708), cited by Lee, C. J., in 1 Ves. Sr. p. 352; Burdick's Cases on Sales, 678; Medina v. Stoughton, 1 Ld. Raymond, 593 (1700); Burdick's Cases on Sales, 677; Gray v. Haynes & Bro., 164 Ala. 294, 297; 51 So. 416 (1909).