(c) A consignment, which is a bailment to an agent.17 (d) A barter, or an exchange of goods for goods;18 but, by the terms of sec. 9, the Act includes barters. The distinction, however, is retained for purposes other than sales. 19 (e) A gift without consideration, which requires delivery." (f) A lease, giving only the use.21 bills therefor, and sell to whom he saw fit. Held a bailment. Johnson v. Allen, 70 Conn. 738, 744. See 77 Ark. 364; Weir v. Long, 145 Ala. 328; Meldrum v. Snow, 26 Mass. (9 17. Pomeroy v. Gershon Bros., 118 Ga. 521; Fleet v. Hertz, 201 Ill. 594; McKenney v. Grant, 76 Kan. 779; Brockman Comm., etc., Co. v. Pound, 77 Ark. 364; Weir v. Long, 145 Ala. 328; Meldrum v. Snow, 26 Mass. (9 Pick.) 441; Ayres v. Sleeper, 48 Mass. (7 Met.) 45; Brown v. Holbrook, 70 Mass. (4 Gray) 102; Oudenried v. Betteley, 90 Mass. (8 Allen) 302; Walker v. Butterick, 105 Mass. 237; Blood v. Palmer, 11 Me. (2 Fairf.) 411; B. & M. Ry. Co. v. Warrior Mower Co., 76 Me. 251; Dekruif v. Flieman, 130 Mich. 12; 1 Mechem on Sales, § 43 et seq.; Benjamin on Sales, p. 7. 18. Williamson v. Berry, 49 U. S. (8 How.) 544; Fuller v. Duren, 36 Ala. 73; Cooper v. State, 37 Ark. 412; Edwards v. Cottrell, 43 Iowa, 194, 204; Slayton v. McDonald, 73 Me. 50; Huff v. Hall, 56 Mich. 456; Larabee v. Klosterman, 33 Neb. 167; Herrick v. Carter, 56 Barb. (N. Y.) 41; Vail v. Strong, 10 Vt. 457, 465; Loomis v. Wainwright, 21 Vt. 520; 1 Mechem on Sales, §§ 13-15; Benjamin on Sales, p. 8. "The distinction between a sale and an exchange of personal property is not substantial. The same rules of law are applicable to both transactions." Com. v. Clark, 80 Mass. (14 Gray) 367. See Mason v. Lathrop, 73 Mass. (7 Gray) 354. "The legal distinction between a sale and an exchange is a purely ar tificial one. The rules of law are the same as applied to both transactions. Practically there is no difference between them." Howard v. Harris, 90 Mass. (8 Allen) 297, 299. See Dowling v. McKenney, 124 Mass. 478; Com. v. Abrams, 150 Mass. 393; Woodward v. Jewell, 140 U. S. 247, 253, 11 S. C. R. 784; Hayes v. Colby, 65 N. H. 192, 193; Drury v. Barnes, 29 Ill. App. 166; Trudo v. Anderson, 10 Mich. 357; Brown v. Smith, 67 N. C. 245; Cleveland v. State Bank, 16 Ohio St. 236. 19. "In the absence of any trade usage, the power to sell does not carry with it or imply the power to barter or exchange." Kerns V. Nickse, 80 Conn. 23, 25, 10 L. R. A. (N. S.) 1118n. See Paschal v. State of Georgia, 84 Ga. 326; Com. v. Davis, 75 Ky. (12 Bush) 240; Redfield v. Tegg, 38 N. Y. 212. 20. Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Com. v. Packard, 71 Mass. (5 Gray) 101; Cook v. Lum, 55 N. J. L. 373; Champney v. Blanchard, 39 N. Y. 111, 116; Gray v. Barton, 55 N. Y. 68; Beaver v. Beaver, 117 N. Y. 421; Pickslay v. Starr, 149 N. Y. 432; Cain v. Moon (1896), 2 Q. B. 283; 1 Mechem on Sales, § 12; Benjamin on Sales, p. 8. 21. Hine v. Roberts, 48 Conn. 267; Loomis v. Bragg, 50 Conn. 228; Benjamin on Sales, p. 9; Parker Co. v. White River Lum. Co., 101 Cal. 37; Hays v. Jordan, 85 Ga. 741, 749; Lucas v. Campbell, 88 Ill. 447; Morris v. Lynde, 73 Me. 88; Gross v. Jordan, 83 Me. 380; Nichols v. Ashton, 155 Mass. 205; Sargent v. Gile, (g) A mortgage, the title conveyed by which is defeasible.22 (h) A pledge which conveys only a special property. At common law, a pledge requires delivery; a sale does not.23 (i) A contract for work and labor.24 (j) A transfer of title by operation of law.25 (k) A partition.26 An agreement for a conditional sale in the absence of fraud is valid as well as against a third person as against the parties.2 8 N. H. 325; Hervey v. Dimond, 67 N. H. 343; Clark v. Hill, 117 N. C. 11; Crist v. Kleber, 79 Pa. St. 290; Summerson v. Hicks, 134 Pa. St. 566; Carpenter v. Scott, 13 R. I. 477; Goodell v. Fairbrother, 12 R. I. 233; Cowan v. Singer Mfg. Co., 92 Tenn. 376; Smith v. Niles, 20 Vt. 315; Whitcomb v. Woodworth, 54 Vt. 544; Collender Co. v. Marshall, 57 Vt. 232; Hervey v. R. I. Locomotive Works, 93 U. S. 664; Helby v. Matthews (1894), L. R. 2 Q. B. 262; Shenstone v. Hilton, 2 Q. B. 452. See Gen. Stat., § 4864. A lease with an option to buy may be made, but where a contract of sale is clothed with the form of a lease to evade the registration laws or for any unlawful purpose, courts will not sustain it to the injury of innocent purchasers. Wilcox v. Cherry, 123 N. C. 79. Overruling Foreman v. Drake, 98 N. C. 311. And citing in support Puffer v. Lucas, 112 N. C. 377; Clark v. Hill, 117 N. C. 11; Barrington v. Skinner, 117 N. C. 47; Singer Mfg. Co. v. Gray, 121 N. C. 168. 22. Holman v. Bailey, 44 Mass. (3 Met.) 44; Merrill v. Chase, 85 Mass. (3 Allen) 339; Merrifield v. Baker, 91 Mass. (9 Allen) 29; Damm v. Mason, 98 Mich. 237; Susman v. Whyard, 149 N. Y. 127, 130; Perkins v. Bank, 43 S. C. 39; 1 Mechem on Sales, § 36; Benjamin on Sales, p. 9. 23. Upham v. Richey, 163 Ill. 530; O'Neil v. Walker, 45 La. Ann. 609; Beeman v. Lawton, 37 Me. 543; Shaw v. Wilshire, 65 Me. 485; Hazard v. Loring, 64 Mass. (10 Cush.) 267; Walker v. Staples, 87 Mass. (5 Allen) 34; Com. v. Savings Bank, 137 Mass. 431; Berry V. Monroe, 57 Mich. 187; 1 Mechem on Sales, § 37; Benjamin on Sales, p. 10. Sales and pledges were distinguished in the following cases: Whitaker v. Sumner, 37 Mass. (20 Pick.) 399; Kimball v. Hildreth, 90 Mass. (8 Allen) 167; Newton v. Fay, 92 Mass. (10 Allen) 505. A bill of sale made for security, even though running directly to the person to be secured and accompanied by delivery of the goods is at most only a pledge and not a mortgage. Copeland v. Barnes, 147 Mass. 388. Citing Thompson v. Dolliver, 132 Mass. 103; Shaw v. Silloway, 145 Mass, 503. 24. Patrick v. Colorado Smelting Co., 20 Col. 268; Central Lith. & Eng. Co. v. Moore, 75 Wis. 170, 6 L. R. A. 788; 1 Mechem on Sales, § 52. 25. Lovejoy v. Murray, 70 U. S. (3 Wall.) 1; Miller v. Hyde, 161 Mass. 472; Fox v. Prickett, 34 N. J. L. 13; Thayer v. Manly, 73 N. Y. 305-9; Cooper v. Shepherd (1816), 3 C. B. 266; 1 Mechem on Sales, § 56. 26. Barnes v. Bartlett, 32 Mass. (15 Pick.) 71. 27. Forbes v. Marsh, 15 Conn. 384; Hart v. Carpenter, 24 Conn. 426; Tomlinson v. Roberts, 25 Conn. 477; Cragin v. Coe, 29 Conn. 51; Hughes v. Kelly, 40 Conn. 148; Brown v. Fitch, 43 Conn. 512; Lewis v. McCabe, 49 Conn. 141; New Haven Wire Co. Cases, 57 Conn. 352, 5 L. R. A. 300. The forms and effect of conditions will be considered under sec. 11 of the Act, and sec. 4864 of General Statutes, post.28 Section 2. Capacity; Liability for Necessaries.- Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. 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. CAPACITY." Capacity to contract must be distinguished from authority to contract. Capacity means power to bind one's self; authority means power to bind another. Capacity is a part of the law of status; authority is a part of the law of principal and agent. Capacity is usually a question of law; authority is usually a question of fact."1 Incapacity may be natural, arising out of an infirmity of mind, as in the case of idiots, insane persons, and drunkards; or it may be created by law, as in the case of infants and married women. IDIOTS AND INSANE PERSONS.-Mental unsoundness, to incapacitate one to buy or sell, must be of such a degree as to render the person unable intelligently to comprehend and know the nature, extent and consequences of his act.2 A bill of sale, though absolute in form, may be shown by oral evidence to have been in trust or by way of security. Raphael v. Mullen, 171 Mass. 111, 112, citing Newton v. Fay, 92 Mass. (10 Allen) 505; Campbell v. Dearborn, 109 Mass. 130; Minchin v. Minchin, 157 Mass. 265; Riley v. Hampshire Co. Nat. Bank, 164 Mass. 482-6. See Burbank v. Crooker, 73 Mass. (7 Gray) 158. 28. Conditional Sales Gen. St., § 4864 (as amended by Pub. Acts 1905, ch. 113). Benjamin on Sales, §§ 320, 560 et seq.; 1 Mechem on Sales, §7; Harkness v. Russell, 118 U. S. 663; Ballard v. Burgett, 40 N. Y. 2. 1 Mechem on Sales, § 64. As to contracts, a person is not compos mentis unless he knows the nature, extent and consequences of his act, but mere disability or weakness of mind is not sufficient to constitute insanity. Hale v. Hills, 8 Conn. 39, 43. There must be such a degree of mental weakness at the time of making the contract as will materially affect his ability to contract. Slight 4 In the absence of fraud or imposition, mere weakness of intellect,3 old age,* Vacillation, shiftlessness, improvidence, occasional despondency or religious hobby," physical weakness or want of judgment or discretion is not enough, but the disability must be so great that the person is "wholly, absolutely and completely unable to understand or comprehend the nature of the transaction.' Mental weakness, imposed upon or taken advantage of, may incapacitate; inadequacy in price is not in itself a sufficient ground to avoid a bargain, “but gross inadequacy of price in connection with suspicious circumstances or peculiar relations be tween parties affords a vehement presumption of fraud.' One may be insane on certain topics and have capacity as to others;10 or insane at given periods and competent at others.11 "All contracts of lunatics, habitual drunkards or persons of unsound mind made after inquisition and confirmation thereof, are absolutely void."12 Before adjudication of insanity, the con departure from the normal type is insufficient to affect his legal status. Juzan v. Toulmin, 9 Ala, 662; Sands v. Potter, 165 Ill. 397; Harrison v. Otley, 101 Iowa, 652; Aldrich v. Bailey, 132 N. Y. 85 et seq.; Molten v. Camroux, 2 Ex. 487, 4 Ex. 17; Neill v. Morley, 9 Ves. Jr. 478; Beavan v. McDonnell, 9 Ex. 309; Drew v. Nunn, 4 Q. B. D. 661 C. A.; Imp. Loan Co. v. Stone (1892), 1 Q. B. 599 C. A.; 2 Page on Contracts, § 894 et seq.; Benjamin on Sales, § 29. A party may have mental capacity to make a will where there is no over-reaching mind to contend with, and yet be incompetent to contract with a living person seeking his own advantage. But to show that the complainant was not as strongminded as the other is not sufficient to set aside a contract. Wilson v. Jackson, 167 Mo. 135. 3. Harrison v. Otley, 101 Iowa, 652; Jackson v. King, 4 Cow. (N. Y.) 207; Aldrich v. Bailey, 132 N. Y. 85. 4. Dickerson v. Evans, 84 Ill. 451; Shea v. Murphy, 164 Ill. 614; Crowe v. Peters, 63 Mo. 429; Smith v. Beatty, 37 N. C. Eq. (2 Ired.) 456; Chadd v. Moser, 25 Utah, 369, 377; Orr v. Penington, 93 Va. 268. 5. Connor v. Stanley, 72 Cal. 556; West v. Russel, 48 Mich. 74. 6. Hovey v. Chase, 52 Me, 304. 7. 1 Mechem on Sales, § 64; Aldrich v. Bailey, 132 N. Y. 85. 8. Juzan v. Toulmin, 9 Ala. 662; Darnell v. Rowland, 30 Ind. 342; Yount v. Yount, 144 Ind. 133; Seeley v. Price, 14 Mich, 541; Ellis v. Mathews, 19 Tex. 390. 9. Juzan v. Toulmin, 9 Ala. 662. 10. Searle v. Galbraith, 73 Ill. 269; Galpin v. Wilson, 40 Iowa, 90. 11. Staples v. Wellington, 58 Me. 453; Lee v. Lee, 4 McCord (S. C.), 183; Boyce v. Smith, 40 Va. (9 Grat.) 704. 12. Griswold v. Butler, 3 Conn. 227; Freed v. Brown, 55 Ind. 310; Leonard v. Leonard, 31 Mass. (14 Pick.) 280, 283; Hughes v. Jones, 116 N. Y. 67; Mohr v. Tulip, 40 Wis. 66. Spendthrift.-The appointment of a guardian over a spendthrift, under Pub. Stat., ch. 139, §§ 8 and 9, after the latter's purchase of goods, tracts of insane persons are voidable only; 13 executed contracts, if fair and equitable and made without notice, will not be set aside unless the parties can be put in statu quo;14 but if the sane person had notice of the insanity or facts which should have put him upon inquiry,15 or the contract is unfair and inequitable, it will be set aside although the parties can not be placed in statu quo,16 To sustain a sale, the insane person must have received an adequate consideration.17 Where there has been no imposition, but before their delivery, does not affect his liability for the price. Meyer v. Tighe, 151 Mass. 355; Manson v. Felton, 30 Mass. (13 Pick.) 206; Chandler v. Simmons, 97 Mass. 508; Nichols v. Morse, 100 Mass. 523; McLean V. Richardson, 127 Mass. 339, 345; Lynch v. Dodge, 130 Mass. 458; 1 Mechem on Sales, § 92. 13. Dexter v. Hall, 82 U. S. (15 Wall.) 9; Webster v. Woodford, 3 Day (Conn.), 90, 101; Boyer v. Berryman, 123 Ind. 451; Ashmead v. Reynolds, 127 Ind. 441; Louisville, etc., Railroad Co. v. Herr, 135 Ind. 591; Aetna Life Ins. Co. v. Sellers, 154 Ind. 370; Allen v. Berryhill, 27 Ia. 534, 540; Waite v. Maxwell, 22 Mass. (5 Pick.) 217; Allis v. Billings, 47 Mass. (6 Met.) 415; Gibson v. Soper, 72 Mass. (6 Gray) 279; Carrier v. Sears, 86 Mass. (4 Allen) 336; Thorp v. Hanscom, 64 Minn. 201; Eaton v. Eaton, 37 N. J. L. 108; Van Deusen v. Sweet, 51 N. Y. 378; Aldrich v. Bailey, 132 N. Y. 85; Banker v. Banker, 63 N. Y. 409; Odom v. Riddick, 104 N. C. 515; Creekmore v. Baxter, 121 N. C. 31; Farley v. Parker, 6 Ore. 105; 1 Mechem on Sales, § 72 et seq. 14. Fay v. Burditt, 81 Ind. 433; Hull v. Louth, 109 Ind. 315; Flach v. Gottschalk Co., 88 Md. 368; McKenzie v. Donnell, 151 Mo. 461; Young v. Stevens, 48 N. H. 133; Eaton v. Eaton, 37 N. J. L. 108; Matthiessen Co. v. McMahon, 38 N. J. L. 536; Lincoln v. Buckmaster, 32 Vt. 652; Benjamin on Sales, § 29. "It is properly conceded by counsel for defendants that since John Barber's deed of assignment was made before his lunacy was found by commission, and since the plaintiff or his agent had no knowledge or notice of the insanity, and dealt with the lunatic in good faith, paying for the assignment a good and valuable consideration, the deed is not void, but only voidable, and that it can be avoided only on paying or tendering back to the plaintiff the consideration paid to him, less so much as he has received by way of rents and profits since the assignment. Eaton v. Eaton (8 Vroom.), 108, 116; Blakely v. Blakely, 33 N. J. Eq. (6 Stew. Eq.), 502, 508; Doughten v. Camden, B. & L. Ass., 14 Id. 556, 561; Matthiesen & Weichers Refining Co. v. McMahon's Administrator, 38 N. J. Eq. (9 Vroom.) 536. Until avoidance the deed of the lunatic in such cases remains good in law. Payment or tender of the consideration money received by the lunatic, less any proper offsets, is a condition precedent to avoidance." Miller v. Barber, 73 N. J. L. (44 Vroom.) 38, 40. 15. Rhoades v. Fuller, 139 Mo. 179; Lincoln v. Buckmaster, 32 Vt. 652. 16. Henry v. Fine, 23 Ark. 417; Crawford v. Scovell, 94 Pa. St. 48; 1 Mechem on Sales, § 74. 17. Hull v. Louth, 109 Ind. 315; Northwestern Mutual Insurance Co. v. Blankenship, 94 Ind. 535; Copen |