lated by the general law concerning capacity to contract and to transfer and acquire property" (7).

It has been stated above (§ 3) that as a sale or a contract to sell is an ordinary contract, all the fundamental principles of the law of contracts are applicable to contracts of sale. The same rules and limitations in respect to the parties capable of entering into any simple contract are applicable to a contract of sale. At common law, the purchases and sales of a married woman were generally absolutely void. She might purchase necessaries as the implied agent of her husband and bind him for the price, but she could not make herself personally liable, even upon a purchase of necessaries. Under the modern statutes in every state, a married woman may make purchases and sales the same as if she were unmarried, and in several states she may contract directly with her husband, thus allowing sales of personal property directly between a husband and wife. The capacity of married women to make contracts is fully discussed in Part II of the article on Domestic Relations and Persons, in Volume III of this work.

The purchases and sales of an infant, i. e., a person who has not yet reached his legal majority, generally twenty-one years of age, are not absolutely void, but voidable only. Contracts of sale entered into by an infant, whether he be the buyer or the seller, are voidable at his election, and cannot be enforced against him, against his will, except for necessaries. The subject of infants' con

(7) Sales Act, sec. 2.

tracts is fully treated in Part IV of the article on Domestic Relations and Persons, in Volume III of this work.

As a general rule, the contracts of an insane person are voidable, although they are held in some states to be absolutely void. When the insanity is unknown to the other contracting party, and no advantage is taken of the insane person, insanity is usually not a defense to an action upon the contract, where the contract has been wholly or partly executed and the parties can not be restored to their original positions. The subject of insane persons' contracts is treated in the article on Contracts, §§ 68-72, in Volume II of this work.

Purchases and sales made by a person while under the influence of liquor are voidable, if the degree of intoxication is such as to render the person incapable of understanding the nature of the transaction into which he has entered. They may be avoided within a reasonable time after becoming sober, or may be ratified. The subject is further treated in the article on Contracts, § 74, in Volume II of this work.

For the effect of the Sales Act upon the doctrine of this subsection, see § 76, below.

§ 8. Liability for necessaries. "Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to

his actual requirements at the time of delivery" (8). The liability of an infant to pay for necessaries is not a liability upon the contract into which he has entered and under which the goods have been sold to him, but his liability is quasi-contractual, which means that he is liable as upon a contract implied in law for the value of the necessaries, i. e., to the extent that he has been benefitel by what he has received. The price agreed upon in the transaction is not taken as the measure of the infant's liability, but, at the most, is only evidence of the value of the goods received. In case the infant has driven a good bargain and the price is less than the real value of the goods, he may exercise his option to stand by his contract. The adult with whom the infant contracts is always bound by the contract, if the infant so elects, whether the subject matter of the contract be necessaries or not.

§ 9. What are necessaries? Whether, in any case, the goods are necessaries or not is a question to be determined according to the circumstances of the individual case. The question to be determined is: are the goods suitable to the condition in life of such infant and to his actual requirements at the time he receives the goods? A saddle horse might be considered a necessary for the son of a nobleman, where horseback riding has been prescribed by his physician, while a cheap set of golf sticks would perhaps be considered a luxury for the son of a peasant, even though he were told by the doctor to

get all the outdoor exercise he could and golf playing were thought to be the best kind. If the infant is already supplied with a sufficient number of the articles purchased, any additional articles of the same sort cannot be regarded as necessaries, and he cannot be held liable for their purchase price or value. In any event, he can be held liable only for an amount sufficient for his immediate needs. While an infant can become bound for the value of necessaries purchased by him, he cannot be held liable in any way upon a contract to purchase them. Where an infant purchases necessaries and the delivery is to be made in installments, he can become liable only for the goods actually received by him, and not for later installments after he has declined to receive any more goods. All of these matters and others connected with them, such as the infant's liability for misrepresenting his age, and the adjustment of rights where the infant repudiates his contract, are dealt with in Part IV of the article on Domestic Relations and Persons, in Volume III of this work.

An insane person is liable for necessaries; and, as in the case of the infant's liability for necessaries, the nature of the liability is quasi-contractual, and the same rules apply as to what may be considered to be necessaries (9). A person is liable for necessaries purchased while intoxicated, to the same extent and upon the same principles as in the case of an insane person (10).

(9) Larue v. Gilkyson, 10 Pa. St., 375; Sceva v. True, 53 N. H., 627. (10) Van Horn v. Hann, 39 N. J. Law, 207.

CHAPTER II.

FORMALITIES OF THE CONTRACT.

§ 10. Form of contract or sale. "Subject to the provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal) or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties" (1).

A contract to sell or a sale may be either written or oral, so long as the contract, as a contract, is validly formed. Where the contract is in writing, it must be proved by the writing, and the evidence furnished by the writing cannot be varied by parol, under the so-called "parol evidence rule." See the article on Evidence in Volume XII of this work.

§ 11. The statute of frauds. The seventeenth section of the statute, 29 Charles II, c. 3, enacted in the year 1676, and entitled "An act for the prevention of frauds and perjuries," was as follows: "And be it further enacted by the authority aforesaid, that from and after the said four and twentieth day of June (1677) no contract for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of

(1) Sales Act, sec. 3.