tain transaction proves to be merely a contract to sell, rather than a sale, no property has passed, and the rights and liabilities of the parties are therefore materially affected. The following cases, in which sales are thus distinguished from partially similar transactions, may be examined with profit.

Sales Differ From

a. Contracts to Sell in the Future:

Groat et al. v. Gile, 51 N. Y. 431.
Cunningham v. Ashbrook, 20 Mo. 553.
Lester v. East, 49 Ind. 588.

Kost v. Reilly, 62 Conn. 57.

b. Bailments:

Irons v. Kentner, 51 Iowa, 88, 50 N. W. R. 73.
Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99.
State v. Stockman (Oreg.), 46 Pac. R. 851.

c. Consignments:

Meldrum v. Show, 9 Pick. 441.

Conable v. Lynch, 45 Iowa, 84.

Renoe v. Milling Co., 53 Kan. 255.

d. Exchanges or Barter:

Redfield v. Tegg, 38 N. Y. 212.
Stevenson v. State, 65 Ind. 409.
Com. v. Abrams, 150 Mass. 393.

e. Gifts:

Pickslay v. Starr, 149 N. Y. 432.
Cook v. Lum, 55 N. J. L. 373.

f. Leases:

Smith v. Niles, 20 Vt. 315.

Murch v. Wright, 46 Ill. 487.
Powell v. Ecker, 96 Mich. 538.
Hine v. Roberts, 48 Conn. 267.

g. Mortgages:

Susman v. Whyard, 149 N. Y. 127.

Damm v. Mason, 98 Mich. 237.

White v. Megill (N. J. Eq.), 18 Atl. R. 355.

Cole v. Bolard, 22 Pa. St. 431.

h. Pledges:

Atwater v. Mower, 10 Vt. 75.
Parshall v. Eggart, 52 Barb. 367.
Brown v. Bement, 8 Johns. 96.
Lenz v. Harrison, 148 Ill. 598.
Roberts v. Norton, 66 Conn. 1.

PART I.

FORMATION OF THE CONTRACT.

§ 3. Since a sale is a contract, the elementary principles that belong to all contracts are involved in the consideration of the subject. We will discuss the formation of the contract, first, under the rules of common law, and secondly, under the requirements connected with the Statute of Frauds.

A. BY COMMON LAW.

1. PARTIES TO THE CONTRACT.

a. The Seller or Vendor.

§ 4. While the general rule is that only the legal owner can sell, there are to this statement important exceptions, which may be classified as follows:

(1) Sales in open market ("market overt").

(2) Sales of negotiable securities.

(3) Sales of pledges or pawns.

(4) Sales by sheriffs, etc.

(5) Sales by master of a ship.

(6) Sales by factors or commission merchants.
(7) Sales by auctioneers and other agents.

85. Market Overt:

In England, a sale made in open market conveys, as a general rule, to an innocent purchaser, a valid title, although the vendor has no legal title to the goods. The rule does not obtain in the United States, however.

Ventress v. Smith, 10 Pet. 176.
Fawcett v. Osborne, 32 Ill. 425.