If so, then such price was not a fair test of the value of the oil, and the jury would be at liberty to determine from the prices before and after the day, and from other sources of information, the actual market value of the oil on the thirty-first of December, 1869. Any other course would be unjust and injurious to fair dealers, and would enable gamblers in the article to avail themselves of their own wrong, and to wrest from honest dealers the fruits of their business. It cannot be possible that a 'corner' such as took place a few weeks since in the market for stock of a western railroad company, where shares, worth in the ordinary market about sixty dollars each, were by the secret operations of two or three large capitalists, forced up in a few days to a price over two hundred dollars a share, can be a lawful measure of damages. Men are not to be stripped of their estates by such cruel and wrongful practices; and courts of justice cannot so wholly ignore justice as to assume such a false standard of compensation."

Trust Prices. Nor is a price fixed by a "trust" to be regarded as the market price, in a case where goods are sold without a specifically agreed price. In the case of Lovejoy v. Michels, 32 the facts were that the plaintiff sold and delivered to the defendant certain knives to be used in machines for cutting hoops. It appeared that plaintiff was a member of a Knife Makers' Association, which at the time embraced all the knife makers in the United States, and that the prices of knives were fixed by this association, one of the avowed objects of which was to maintain prices. The defendant claimed that as no price was fixed at the time the order was placed, only the fair market value of the goods could be recovered, and that in arriving at such value the prices fixed by the Knife Makers' Association were not to be considered, as that association was an unlawful combination in restraint of trade. Speaking through McGrath, J., the court said:

"In the present case no price was agreed upon at the time the order was given, and there was no evidence tending to show that defendant had any knowledge of the price fixed by the association. An attempt is made to fasten a 32 88 Mich. 15, 49 N. W. 901.

price fixed by a combination upon such a purchaser. It is suffcient to know that the price sought to be imposed is that fixed by the combination. If so, it was unlawfully fixed, and has no force as a market price, for that reason. It is the combination for the purpose of controlling prices that is unlawful, and the fact that they, the manufacturers, deemed the prices fixed to be reasonable, does not purge it of its unlawful character. Independently of the unlawful character of the combination fixing it, a price so fixed cannot be regarded as any better evidence of value than that fixed by any vendor upon his own wares. A price so fixed is not to be entitled to rank as the market price. It is not a market price within the contemplation of the law. The market price of an article manufactured by a number of different persons is a price fixed by buyer and seller in an open market, in the usual and ordinary course of lawful trade and competition. It cannot be divested of these incidents, and retain its character. Associations of this character give the buyer no voice, and close the market against competition."

SUBJECT-MATTER OF SALE

§ 27. Goods. At the present day, the subject-matter of a sale may be, with a few exceptions both in England and the United States, any form of personal property, or goods, to use the synonymous term. Speaking broadly, under the common law, only personal chattels that could be the subject of larceny, and capable of delivery, could be the subjectmatter of a sale. Today this test nowhere exists.

33

In the United States, however, a larger meaning than in England has been attached to the term "goods." Money while a medium of exchange and a measure of value of commodities, may itself be the subject-matter of a sale when in the form of specie, or rare and historic coins. Book accounts have been regarded as "goods", contrary to the more widely accepted view that only property evidenced by an instrument capable of delivery can be included under the words "goods, wares, and merchandise".

Goods Must Be in Existence. The subject-matter of a present sale must be in existence at the time of the contract. This does not mean that there can be no contract 33 Burdick (F. M.) on Sales (2d ed.), p. 5.

for the sale of future goods, such as goods to be later manufactured or acquired by the buyer. Such a contract, however, is only a contract to sell, and no present title passes. Existence does not comprise visible existence alone. Things in potential existence may be bought and sold. But a mere chance of acquiring property cannot be the subject of a sale. In Low v. Pew,34 the question arose whether there could be a valid sale of halibut afterwards to be caught, so as to pass title to the fish when caught. The court said:

"It is an elementary principle of the law of sales, that a man cannot grant personal property in that in which he has no interest or title. To be able to sell property he must have a vested right in it at the time of the sale. Thus it has been held that a mortgage of goods which the mortgagor does not own at the time the mortgage is made, though he afterwards acquires them, is void. The same principle is applicable to all sales of personal property.

"It is equally well-settled that it is sufficient if the seller has a potential interest in the thing sold. But a mere possibility or expectancy, not coupled with any interest, does not constitute a potential interest in it, within the meaning of this rule. The seller must have a present interest in the property, of which the thing sold is the product, growth, or increase. Having such interest, the right to the thing sold, when it shall come into existence, is a present vested right, and the sale of it is valid. Thus a man may sell the wool to grow upon his own sheep, but not upon the sheep of another; or the crops to grow upon his land, but not upon land in which he has no interest.

"In the case at bar, the sellers, at the time of the sale, had no interest in the thing sold. There was a possibility that they might catch halibut; but it was a mere possibility and expectancy, coupled with no interest. We are of the opinion that they had no actual or potential possession of, or interest in, the fish; and that the sale to the plaintiffs was void."

Potential Existence. By potential existence is meant things that come into existence in the ordinary course of nature, as the young of animals, or future crops the result of industry. Those things exist in contemplation of law,

34 108 Mass. 347.

and the prospective owner of them may sell them by virtue of his ownership of those things out of which they proceed, and possession to them will vest when they actually come into existence.

§ 28. Emblements. A common case of the sale of things in potential existence is of growing crops or emblements, which consist of those annual crops which are the yearly return of the labor and outlay bestowed by the tenant upon them. Extracts from opinions in two cases in different States will sufficiently indicate the law on this topic.

"Annual crops raised by yearly labor and cultivation are fructus industriales, and are to be regarded as personal chattels, independent and distinct from the land, capable of a sale without regard to whether growing or matured. It is clear from the adjudications just cited that a growing crop of wheat is a proper subject of sale. ''35

"That growing crops are so far personal property, that they may be sold and transferred by parol, is undoubtedly the well settled principle of law. They partake of realty, no doubt, so far as to pass by a deed of the land as incident to it, and so it is with many other articles, which are well settled to be personal property, as fixtures of trade, or machinery erected for mechanical purposes. It has long been settled beyond controversy, that a constable may seize upon and sell growing crops, to satisfy an execution issued by a justice of the peace, and this only upon the ground that they are personal property.

1936

§ 29. Perennial Crops. Products of the soil that are not annually planted such as trees (except nursery trees), bushes, grass, minerals, were regarded as realty by the common law, yet if the owner agreed to sell and sever them, they then were treated as personalty and might become the subject-matter of a present sale of goods.

In Killmore v. Howlett,37 the facts were, that Howlett contracted to cut trees standing upon his land into cord wood and to deliver the wood at so much a cord to Killmore at Killmore's wood-yard. After cutting and delivering to Killmore part of the wood, Howlett refused to de35 Swafford v. Spratt, 93 Mo. A. 631. 86 Bull v. Griswold, 19 Ill. 632.

37 48 N. Y. 569.

liver any more, the price of wood having advanced from $5 to $7 or $8 a cord. When sued by Killmore, he pleaded that the agreement was for the sale of an interest in land, and not being in writing, was void. In affirming the judgment below, the court said:

"If the standing trees upon the lot, which by the contract were to have been cut by the defendant and made into cord wood, and delivered by him to the plaintiff at Syracuse, had, instead of the wood to be made therefrom, been sold in their standing condition, 'rooted in the soil,' the right of the plaintiff to enter and fell them, and make them into wood, would have been the sale of an interest in the land, and without having been evidenced by writing would have been void. This was not a sale of the trees in their standing condition, but rather a contract by the defendant to bestow work and labor upon his own material, and deliver it in its improved condition to the plaintiff."

In Bent v. Hoxie,38 a different result was reached where the severance was to be made by the purchaser. In that case the plaintiff sold to defendant all pine timber standing or growing upon certain premises, with the right to defendant to enter and remove the same, but with a proviso that the title to the logs, timber and lumber manufactured therefrom should remain the plaintiff's until the purchase price was fully paid.

The court held this contract to have been one for "the sale of an interest in land," with reservation of title in plaintiff as a security for the price. On its face it was intended by the parties as a conditional sale of the timber.

§ 30. Ice and Water as Objects of Sale. While ice and standing water upon land will generally pass as realty with a conveyance of the land, yet as they form distinct articles of commerce today, they are often treated as personalty. Water taken from springs and bottled is a commodity of sale, and it is almost exclusively as a form of personal property that ice has any commercial value. Hence, where water or ice is to be severed from the realty and disposed of, they are treated as forms of personal property.

38 90 Wis. 625, 64 N. W. 426.