Chapter 21

If a man buys a farm and pays a part of the price and goes away saying that he will pay the remainder within a week, expecting then to do so and receive a deed, the seller, if he chooses, can escape giving that deed and parting with his farm. The payment of a part of the money does not bind the bargain, nor will the courts, though knowing this, compel the seller to give such a deed. The reader may ask, if this is the law, cannot the farmer practise a fraud on the buyer by receiving his money and keeping it and the farm too? He cannot do both things. If he refuses to give the deed he must, on the other hand, return the money; if he refuses to do this the buyer can compel him by a proper legal proceeding to refund the amount. In this way the buyer gets his money back again, but not the farm that he bought.

It is said that this statute is as often used as a shield to protect men in doing wrong as in preventing frauds. In numberless cases persons, just like the farmer imagined, have used this statute as a means to protect them in not carrying out their agreements. This happens every day.

This statute also relates to other matters. One clause says that an executor or administrator cannot be required to pay anything at all out of his own pocket on any promise that he has made unless it be in writing. Every one knows about the duties of an executor or administrator. An executor is one who settles the estate of a person who has died leaving a will directing what shall be done with his wealth. An administrator is a person who settles the estate of a deceased person leaving no will. He is appointed by the law, which fully states his duties. Let us suppose that an executor is employed to settle an estate, and that he employs a carpenter to make some repairs on a house belonging to the estate. The contract is fairly enough made between the carpenter and the executor. Let us also suppose that he has no lien on the house for the work that he has done, or that he has lost his lien by reason of not having filed it in time, as the law requires. Afterward he goes to the executor and demands payment for the repairs that he has made. Let us suppose that the estate is insolvent and cannot pay all of its debts in full. At the time of making this contract neither party supposed this would happen. But, unhappily, debts have come to light so large and numerous that there is not property enough to pay all the creditors everything that is due them. The executor says to the carpenter: "There is not property enough to pay all of the creditors and you, unfortunately, must fare like all of the rest, and you cannot be paid a larger percentage on your share than the others." To the carpenter this would be unwelcome news, and he would doubtless say to the executor: "I made this contract with you expecting that you would pay me, and if the property of the estate is not sufficient you ought to pay me this. I am a poor man and cannot afford to lose any of my hard-earned money." The executor might say to him: "I am as poor as you and I cannot afford to pay you out of my own pocket, and in law you cannot compel me to do this." And, in truth, the carpenter could not do this unless the executor had made a contract in writing, agreeing in any event to pay whether there was money enough belonging to the estate or not.

Another clause says that _a person cannot be required to pay the debt of another unless the agreement is in writing_. If A went into a store to buy goods and B should be a little afraid to trust him, and C, a friend of A's, should happen to be present and say to the merchant, "Let A have these goods and if he does not pay you I will," this would be the promise to pay the debt of another; and if A should not pay it C could shield himself behind this statute and escape without paying anything.

There is another clause relating to the sale of ordinary merchandise. The law says that _contracts for ordinary merchandise must be in writing if the amount is over_ $50. In some States the amount is $35. Long ago it was decided that this statute did not relate to contracts for work, and they therefore must be carried out or fulfilled in the same manner as though no statute existed, _for work is not merchandise_.

VIII. CONTRACTS FOR THE SALE OF MERCHANDISE

To make a contract of sale there must be, as we have seen, two or more parties, and a consideration must also be given. The sale is complete when the _property_, or _title_, or _ownership_ in the thing bought passes from the seller to the buyer. It is not necessary in order to make a valid sale to deliver the thing bought. If the _title_ or _ownership_ in the thing is not transferred, the sale still remains incomplete.

The law supposes or assumes that a person will always pay for a thing purchased. If I should go into a store, inquire the price of a book, and, after learning the price, should say to the salesman, "I will take the book," and he should wrap it up and give it to me and I should then walk out with the book under my arm, he doubtless would come to me and say in his politest manner: "Why, sir, you have forgotten to pay me for it." Suppose I should say: "Oh, yes; but I will come in to-morrow and pay." But if I happened to be a stranger, and especially if there was a suspicious look about me, and he should say they did not give credit in that store, and I was still inclined to walk out with my book, he could insist that there had been no sale and that I must give the book to him. The law would protect him in taking it from me if he did not use undue force. The law assumes, unless some different rule exists, that the buyer will always pay for the thing purchased, yet in law there is no sale unless the purchase money is actually paid.

Of course, credit may be given in a store--that may be the practice; and if it is understood between buyer and seller that credit is to be given, then a sale is complete as soon as the bargain is struck. Indeed, so complete is the sale that if the buyer should say to the salesman, "I will leave this here and return and take it in a short time," and during his absence the store should be burned up and everything perish, the buyer would be obliged to pay for the book. In other words, after it had been sold, if still kept there the seller would be merely the keeper, or bailee, which is the legal term, and he would be obliged to use only ordinary care in keeping it. Suppose a thief should come in and take it away--would the seller be responsible for the loss? Not if he had used the same care in protecting it as in protecting his own property.

Another illustration may be used to bring out the nature of a sale more clearly. Suppose I have bought a particular work in a store, either paying cash or buying it on credit, if that be the practice of the store, and I should say to the salesman: "I am going down street and on my return will call and take the book." During my absence I meet a friend and tell him of my purchase, and he should say to me: "I am very desirous to get that work; I am sure there is no other copy in town. Will you not sell it to me?" Suppose I gave him an order, directed to the seller, requesting him to deliver the work to the person to whom I have sold it. If he should take the order to the store he could claim the book as his own and the original seller would be obliged to give it to him.

_It is very important_, however, in many cases _to make a delivery of the thing sold_. As we have already stated, the title as between the buyer and seller is actually changed or transferred at the time of making the sale and it is therefore complete. But if a delivery of the thing sold is not actually made and another person should come along and wish to buy it, and the seller should prove to be, as he sometimes is, deceitfully wicked, and should sell and deliver it to him, the second buyer would get a good title and could hold it just as securely as though it had not been previously sold to another. Of course, the second buyer must be an innocent person, knowing nothing about the first or prior sale. If he did not know and pays the money for the thing he has bought and takes it away, he gets a perfectly good title as against the first buyer. If he was not innocent the first buyer could claim it and the second one would lose his money unless he was able to get it back again from the seller. Of course, such a transaction is a fraud on the part of the seller. Therefore it is safer in all ordinary transactions for the buyer to take the thing he has purchased unless he is sure that the seller is a perfectly honest man, who will not practise any such fraud upon him.

Suppose the seller had things in his keeping that had been sold but not taken away, and should fail in business, or that persons to whom he owed money should sue him and try to hold not only all of the goods still owned by him but even those which he had sold. Could they succeed as against a person who had bought them in perfectly good faith? It is said that the buyer in such cases can get his goods after clearly showing that he had bought them and paid for them; but the evidence of his purchase must be perfectly clear, otherwise the court will not permit him to take them away and he will lose them.

If a merchant is to deliver a thing as a part of the contract of sale, then, of course, he must do this; otherwise he is liable for his failure to carry out his contract. This rule applies to most purchases that are made in stores. The merchant intends to deliver the thing sold, the buyer purchases expecting this will be done, and the price paid for them is enough to cover the cost of taking them to the buyer's house; in other words, the price of the goods, whatever it may be, is intended to be enough to pay the merchant for his cost in delivering them, and in such cases the contract is not complete until a delivery has actually taken place.

Again, if the thing purchased is a part of a mass of goods, a separation must be made to complete the contract. If a man should buy 100 barrels of oil which were a part of 1000 barrels, a separation of some kind must be made of the particular ones sold. If one should buy trees in a nursery, to make the contract complete the particular trees must in some way be known, either by rows or every other tree--in short, in some way the trees must be clearly set apart. If part of a mass of timber is bought, the particular logs must be marked or in some way pointed out from the other part of the mass. This rule applies to all things bought that form a part of a large mass. The mode of pointing them out depends on the nature of the thing; a different kind of separation must be made in some cases from what is necessary in others.

IX. THE WARRANTIES OF MERCHANDISE

The rule of law in buying is, _the buyer must look out for himself_; and if things are not what he supposed they were he has no rightful claim against the seller. The maxim of the law is, "_Let the purchaser beware_"--let him take care of himself. The rule of the Roman law was different. It was the duty of the seller to tell the buyer of all the defects known by him in the thing sold, and if he did not he was responsible for any loss caused by any defect or imperfection found after purchasing that was known by the seller before.

The modern principle may be looked at from two points of view. First, _the seller need not make known any defects which the buyer can find out himself_. Suppose a man is thinking of buying a horse that is (though he does not know it) blind in one eye. The law says that the buyer ought to be able to see such a defect quite as readily as the seller, and if he does not the fault is his own. Blindness in one eye is quite as easily seen as would be the lack of an ear or tail. And this principle applies very generally in all purchases. It covers all visible defects. Nor can any one find much fault with this rule, because the buyer generally has as good eyesight as the seller, and if he takes pains, as he should, he is able to discover all ordinary defects. Furthermore, the buyer doubtless often knows quite as much about the things he purchases as the seller.

But the courts also say that it applies to other defects. Suppose a horse has the heaves or the rheumatism, which is known to the seller but of which the buyer has no knowledge whatever. The seller is not obliged to make known this defect to the buyer, and if he is silly enough to purchase on his own wisdom he must abide by the consequences. If he does inquire and is deceived, that is another thing. But if he asks no questions, or the seller does not deceive him in any way, the seller is not responsible for defects known by him at the time of the sale. This also is a well-understood rule.

_The seller_, we repeat, _must not deceive the buyer_. In one of the well-known cases a man owned a ship that he was desirous of selling. She was unsound in several places and the seller put her in such a position that her defects could not be readily found out. He did this for the purpose of deceiving the buyer and succeeded. When the buyer learned how he had been tricked he began a legal proceeding to get back a part of the money that he had paid, and won his case. And rightfully, too, for the reason that the seller had deceived him, which he had no right to do.

Another case may be stated of a man who was desirous of purchasing a picture, supposing that it was once in the collection of an eminent man. The seller knew perfectly well that the picture did not come from that collection and that the buyer was acting under a delusion. He did not say that the picture had belonged to the collection or had not; he was silent, although he knew that the buyer would not purchase it if he knew the truth about its former ownership. For some reason or other the buyer did not make any inquiry of the seller, or if he did was not told. But after purchasing the picture the buyer learned that he was mistaken and that the seller knew this at the time of making the sale. He sought to recover the money he had paid and succeeded, the court saying that a fraud had been practised upon him; that it was the duty of the seller, knowing what was passing in the mind of the buyer, to have told him the truth about the former ownership of the picture.

It will be seen, therefore, that _the seller must not deceive the buyer in any way or practise any fraud on him_; if he does he will be responsible for the loss or injury befalling the other.

What, then, ought a buyer to do in purchasing a horse, for example, in order to guard himself against the unwelcome discovery of disease or other defect? Clearly, _he ought to require the seller to give him a warranty_. A proper way is, if the transaction be an important one, to have the warranty in writing and signed by the seller. It need not be very long; a few words usually are enough.

There is a very important difference that every one ought to understand between words that are spoken at a sale, which are mere representations, and words that form a warranty of the thing sold. If I should go into a store to buy a piece of flannel, and ask the salesman if it was all wool, and he should assure me that it was, and I, ignorant of the quality of the material, and desirous of buying a piece of all-wool flannel, should say to him: "I know nothing about it; I rely entirely on your statement," and he should say: "It is all right; all wool, and no cotton," his words would be a warranty, and if the flannel proved to be made partly of straw or cotton, or something besides wool, I could sue the seller on his warranty, and recover for the loss I had suffered, whatever that might be. But suppose I were a flannel manufacturer myself, and knew at the time he was saying this to me that the flannel was partly cotton; in short, knew a great deal more about it than he did, and was not deceived in any way by what he said, his words would not be a warranty, because my action in buying the flannel would not be influenced by them.

What test, then, is to be applied? Evidently whether or not the buyer acts on the words spoken and is deceived by them. If, relying on them, he buys and is deceived or misled to his loss or injury, then the words will be taken as a warranty and protect the buyer. If, on the other hand, he is not deceived by what is told him, and he buys on his own knowledge and judgment, then the words are not a warranty.

One or two other points may be briefly noticed. The law says that _the seller always warrants the title to the thing sold_--in other words, that he is the owner. He may not say one word about the matter, but the law implies that he is the owner and would not sell a thing that did not belong to him. If he should prove not to be the owner, the buyer could recover for his loss.

_Another point about adulterations._ The common law does not regard an article as adulterated, giving the buyer the right to claim something back, unless it has been materially changed by the foreign substance. All, or nearly all, of the States have made statutes within recent years, or re-enacted old ones, holding sellers strictly responsible for the quality, especially of provisions, sold. These statutes generally require the seller to sell absolutely pure articles, and he cannot shield himself by saying that he was ignorant and innocent of their nature if they proved to be other than pure articles. If a grocer should sell cotton-seed oil for olive oil, even though doing so ignorantly, without any intention to deceive, he would nevertheless be held liable under the statutes that now exist in most of the States; and public opinion strongly favours the strict execution of these statutes.

X. COMMON CARRIERS

_What is meant by a common carrier?_ A person or company that is obliged to carry merchandise or passengers for a price or compensation from place to place. A common carrier cannot select his business, like a private carrier, but _must_ carry all merchandise that is offered; or, if he is a carrier of persons, all persons who desire to go and are willing to respect all reasonable regulations that relate to carrying them. _The principal common carriers are railroads, steamboats, and canal companies._

The liability of common carriers is very important to all who travel or send merchandise. A common carrier is liable for all losses not happening by the act of God or by the public enemy. By "act of God" is meant unavoidable calamity, such as lightning and tempests, and by "public enemy" is meant a nation at war with another. Once these were the only exceptions. Carriers were therefore insurers of the goods left with them to be carried to some other place.

This early rule of law fixing their liability has been greatly changed. Carriers can now make a contract relieving themselves of all liability for losses in carrying goods except those arising from their own negligence. The courts in a few cases have said that they can relieve themselves even from this, but this is not generally the law. They can, though, by special contract relieve themselves from all other liability. A railroad company, therefore, can make a contract for carrying wheat from Chicago to New York, relieving itself from all liability for loss by fire unless this shall be caused by its negligence. If a fire should occur without any negligence on the part of the company and goods on the way should be destroyed, it could not be held responsible for the loss if there was such a contract between the shipper and carrier. _A carrier is no longer an insurer for the safe carrying of goods._

The courts have permitted carriers to thus lessen their liability because they are willing to take goods at lower prices than they would if they were to be responsible for all losses. They now virtually say to the shippers: "If you are willing to be your own insurers, or insure in insurance companies, and hold us for no losses except those arising from our own negligence, we are willing to carry your goods at a much lower rate." And, as shippers are willing to take the risks themselves for the sake of getting lower rates, the practice has become universal for lessening the liability of carriers in the manner described.

Suppose that goods are burned up by fire. The shipper must be the loser unless he can show that it was caused by the negligence of the carrier. As he often can show this, he imagines that the carrier is still living under the old law and is liable as he was in the early days of railroad and steamboat companies. In truth, this is not so. His liability is measured by his contract, and there can be no recovery for any loss unless negligence on the carrier's part is clearly shown, and in many cases this is not easily done.

Though common or public carriers are obliged to take and transport almost everything, _they may make reasonable regulations about the packing, etc., of merchandise_. Suppose a shipper were to come to a railroad company's clerk with a quantity of glass not in boxes, and should say to him, "I wish this glass to be carried to New York"; and the clerk should say to him that the rules of the company required all glass to be packed in boxes lined with straw, and that the rule could not be set aside, however short might be the distance. Very likely the shipper would say to the agent: "This is expensive; I wish you to take it as it is." And if he should say to the agent that he was willing to run the risk of breakage, then, perhaps, the clerk might take it in; yet, even on those terms, some carriers would not. At all events, if the clerk should insist on following the rules, the shipper could not justly complain, for this rule is a very reasonable one, as the courts have many times declared.

Suppose a shipper should ask a carrier to take a load of potatoes or apples to Montreal in very cold weather. The carrier says to him: "There is danger of the apples being frozen. I am unwilling to carry them unless you will take the risk of their freezing." He could insist on these terms, because it would be unreasonable to require carriers to transport such merchandise and keep their cars heated. They are not made in that way and every shipper knows it, nor are carriers required to heat them.

The courts have said that any reasonable regulations respecting the merchandise to be carried, the packing, etc., must be respected. A carrier could refuse positively to carry dynamite or powder unless it was packed in a very careful manner. Doubtless many things are carried in ways quite contrary to the regulations, without the knowledge of the carrying companies. Packages are rarely examined and things may be put within, out of sight, of which carriers know nothing.

A carrier is not required to have cars enough to carry all goods on unusual occasions. But it must have enough to carry without delay all that come from day to day.

XI. THE CARRYING OF PASSENGERS

Millions ride on steamboats, in the street-cars, and by steam-railways, and the question is an important one with them. _What are the rights and duties of company and passenger? First, it is the duty of a company carrying passengers to provide every one with a seat._ This rule does not apply to street-cars but it does to steam-railways. In some cases it is said of the street-car passengers that those who use the straps pay the money from which dividends are paid. But the rule is otherwise that applies to railway companies. They must furnish seats for their passengers and cannot demand fares until seats are secured.