changes to be sales under the statute, while others take

the contrary view:

(1) Holding that they are sales.

State v. Mercer, 32 Iowa, 405.

Rickart v. People, 79 Ill. 85.
State v. Horacek, 41 Kan. 87.

(2) Contra.

Com. v. Smith, 102 Mass. 144.
People v. Adelphi Club, 145 N. Y. 5.

State v. St. Louis Club, 125 Mo. 308.

In connection with statutory or constitutional illegality of liquor sales, the famous "original package" case may profitably be read, although the question is, strictly, one of interstate commerce, rather than of sale.

Leisy v. Hardin (1890), 135 U. S. 100, 10 Sup. Ct. R. 725.

§ 129. Pensions; Federal Statutes:

The statutes of the United States (Rev. St., § 4766, with amendments of 1898 and 1899) provide that except in certain specified cases of lunatics under guardianship, desertion of family, etc., pensions are payable only to the party entitled thereto, and that they shall be paid out to no other person upon any order, warrant, power of attorney, etc.

As to goods sold to Indians, in violation of federal statutes, see

Dunn v. Carter, 30 Kan. 294.

§ 130. Sunday Sales:

Questions connected with sales made upon Sunday fall, properly, under sales made illegal by statute, since such sales are not void at the common law. If such sales are executed, the law, as in all other illegal sales, leaves. the parties where it finds them. The vendor cannot enforce payment, the vendee cannot compel delivery. More

over, if the sale is executory, neither party can enforce its performance, if the action is based upon the Sunday contract. Sales, frequently, however, are agreed to upon a Sunday, and delivery of the goods is made upon a subsequent legal day. In such cases it has been held a valid sale, depending, however, upon the assumption that the contract was formed at the time of delivery. The decisions must be interpreted, however, in the light of the language of the statute, since the alleged principles connected with such sales are, by no means, harmonious.

Johnson v. Brown, 13 Kan. 529.

Chestnut v. Harbaugh, 78 Pa. St. 473.

Adams v. Gay, 19 Vt. 358.

Harrison v. Colton, 31 Iowa, 16.

Foreman v. Ahl, 55 Pa. St. 325.

Robeson v. French, 12 Met. 24.

§ 131. Principles Applicable to Illegal Sales:

Finally, in addition to what has been said, a few general principles pertaining to all illegal sales may here. be briefly summarized. In general, a sale that is illegal in part is illegal in toto, although if the illegal portion is separate and distinct from the rest of the contract, the legal part may stand. If a sale is legal in the place where the contract was formed, then, in general, it is legal everywhere, the lex loci contractus applying rather than the lex fori. In certain C. O. D. cases, however, we have seen that the courts are not agreed as to the place of the sale. As to the burden of proof, it rests upon the party alleging the illegality.

Saratoga Bank v. King, 44 N. Y. 87.

Widoe v. Webb, 20 Ohio St. 431.
O'Rourke v. O'Rourke, 43 Mich. 58.

Swann v. Swann, 21 Fed. R. 299.

Perlman v. Sartorius, 162 Pa. St. 320.
Wilson v. Melvin, 13 Gray, 73.
Leisy v. Hardin, 135 U. S. 100.

PART IV.

PERFORMANCE OF THE CONTRACT.

§ 132. The discussion of the performance of the contract might very properly be taken up as a second division of our subject rather than as the fourth; that is, immediately after the consideration of the formation of the contract. Granting that the contract has been duly entered into, in carrying out, thereupon, the terms of the same, various questions arise in its performance. These questions are those of conditions connected with the contract, of various warranties concerning the goods, of delivery, and of acceptance of the same, and, finally, of payment for them. Each of these topics requires particular attention.

1. CONDITIONS.

$133. Conditions and Warranties:

Most of the text-writers upon the subject of sales recognize and appreciate the difficulties that are caused by the confusion of these terms, both in the books and in the various reports. In England, the term "condition" is frequently used when most American lawyers would employ the phrase "implied warranty." Due to this influence of the English writers and reports, the expressions have been interchangeably used by not a few of our own courts, and, in consequence thereof, but little dependence can be placed upon some of the decisions relating to "conditions" and "warranties" as reliable rules to assist us in our discriminations between these terms.