an article of personal property for a price exceeding $50, within the statute of frauds and void if not in writing?

It is not. Such contracts are held to be for work and labor, and not contracts of sale. If, however, the article is to be manufactured by a person other than the vendor, the better opinion is that it is a sale and within the statute.

16. Is any particular form necessary for a memorandum of sale?

If the wording is definite as to the designation of the parties, the description of the thing sold and the price to be paid, no special form is required.

17. When is an oral acceptance sufficient?

If the term of credit is less than one year, and the price is less than $50, an oral acceptance is sufficient.

18. What is the presumption when goods sold are left in the hands of the seller?

This is presumed to be a badge of fraud and a subsequent purchaser, without notice of the former sale, is protected in the possession and ownership of the goods.

19. What is warranty?

Warranty is an undertaking on the seller's part to answer for the title, quality, quantity or fitness of the thing sold, and is either express or implied.

20. How does a warranty differ from fraud in the contract of sale?

A warranty is made during the negotiations for the sale and becomes a part of the contract. The remedy for the breach of the warranty is the recovery of damages therefor, which is the difference between the market value of the article sold if it had been as warranted and as it in fact was. If the contract of sale was procured by fraud, the innocent party may elect to rescind the contract or he may affirm it, but this election must be promptly made after a discovery of the fraud.

21. What are the remedies of the vendor and the vendee where the contract of sale was procured by fraud?

The remedies of the vendor are, to rescind the contract and recover the goods sold or their value, or to affirm the contract and recover the purchase price. The vendor in

seeking to replevin must, as a condition precedent, return the purchase price if it has been paid.

The defrauded vendee has four remedies, (1) return the goods and recover the price if paid, or refuse to pay if the price is unpaid; (2) keep the goods and if the price is unpaid, when sued for the price plead the fraud as a counterclaim; (3) keep the goods, and price being paid, sue in tort for the damages sustained, which ordinarily is the difference between the actual and the represented value, and (4) file a bill in equity to set aside the sale if the remedy at law is not adequate.

22. When will the price paid for the subject matter of the sale support the warranty?

If the warranty be made at the same time as the sale, the one consideration will support both the sale and the warranty. If the warranty be made subsequent to the time of sale, there must be a new consideration.

23. How are warranties classified?

Warranties are, as to the manner of making, either express or implied and usually apply to either quality or title of the thing sold.

24. When is there an implied warranty of title?

If the seller of the goods have them in his possession it is implied that he is the owner, hence the implied warranty of title.

There is also an implied warranty on the part of the seller that the subject matter of the sale is free from incumbrances.

25. When is there an implied warranty of quality?

When goods are sold by sample there is an implied warranty that the bulk of the goods is equivalent in all respects to the sample. If the goods are sold by description the same rule applies.

There are other cases where the law implies a warranty. Where goods are ordered from a manufacturer there is an implied warranty that the article is free from any defect arising from the process of manufacture and that it is fairly fit for the purpose for which it is purchased. Where provisions are sold by a dealer to a customer for human consumption there is an implied warranty that the same are wholesome and fit for food.

26. What is the remedy for breach of warranty?

Two remedies are recognized for the breach of warranty. The one is a suit for damages, the other a suit for rescission of contract and a return of the property.

The vendee may, if he chooses, retain the goods and if he has paid for them maintain an action against the vendor for the damages he has sustained in consequence of the breach of the warranty, or if he has not paid for the goods, he may, in an action by the vendor to recover the purchase price, set off his damages for said breach in said

action.

27. Whose duty is it to deliver the goods?

Unless there is a different agreement it is the duty of the seller to deliver the goods.

28. What constitutes a delivery of the goods?

It may be to simply place the goods at the disposal of the buyer and does not necessarily mean a moving of the goods from the place they occupied at the time of the sale. It may, however, mean an actual transfer or moving of the goods from one place to another. If the goods are to be placed in the hands of a carrier for shipment to the buyer, the seller must use such care as he would in the packing and shipping of his own goods, and if given instructions by the buyer concerning the time or manner of shipment, must follow such instructions carefully.

29. What two kinds of delivery are there?

Actual and constructive are the two kinds of delivery.

30. How do these two kinds of delivery differ? Actual delivery is a change of possession, a transfer of the subject matter from the seller to the buyer.

Constructive delivery involves no moving or handling of the goods but passes the title by such an act as the delivery of a warehouse key or the transfer of a bill of lading.

31. When is the buyer entitled to the goods?

If the sale is on credit, the buyer is entitled to the goods at once; if payment is the condition, then he is not entitled to the goods until either payment or a tender of payment has been made in proper form.

32. What is necessary to effect a transfer of title?

It may be an actual or constructive delivery of the goods, but in general, fully agreeing to the terms of the sale vests the title in the buyer.

33. What may the seller do in case the buyer refuses to receive the goods?

He has three remedies:

(1) He may hold the goods subject to the order of the vendee and recover the purchase price.

(2) He may retain the goods as his own and recover the difference between the market price of the goods at the time and place of delivery and the contract price.

(3) He may resell the goods and receive and retain the purchase price and recover the difference between the price obtained upon the resale and the contract price.

If the remedy is a resale of the goods, the seller must act in good faith and should notify the buyer of the time and place of sale.

34. Where the subject matter of the sale has been injured or destroyed, upon whom does the loss fall, the vendor or the vendee?

The universal rule is that the "loss follows the title" unless otherwise stipulated by the parties.

35. When does the title pass to the purchaser where the latter orders goods to be forwarded to him c. o. d.?

The weight of authority is, in such a case, that the title passes upon delivery of the goods to the common carrier but that possession only is reserved by the vendor till pay

ment.

36. In such cases what relation does the common carrier sustain to the vendor and vendee?

The common carrier is the agent of the vendee in transporting the goods from the place of shipment and delivering the same to him, and the agent of the vendor in collecting the purchase price of the goods and accounting therefor to the latter.

In a few states, amongst them Vermont and Colorado, it has been held that the title does not pass to the vendee until payment.

37. When does the title pass under a contract for the sale of goods "to arrive?"

No title passes until the goods have actually arrived. 38. When does the title pass in cases of "sales on trial?” In such cases the title does not pass to the purchaser until acceptance. If no time is specified the purchaser is required to return the goods within a reasonable time, otherwise he is deemed to have accepted the goods and the title will become vested in him.

39. What is the rule in cases of "sale or return?"

The sale is deemed a completed one and the title passes to the vendee upon the delivery of the goods subject to be divested upon the return of the goods to the vendor.

40. What is the doctrine of "caveat emptor?"

It means: "Let the purchaser beware." Where the vendee has opportunity to inspect the goods of his own selection there is no implied warranty as to the quality of the same. It is for the purchaser, at his peril, to know the qualities of the goods reasonably within his observation and judgment and unless the seller gives an express warranty, or unless the seller be guilty of fraud, the purchaser is deemed to have purchased the goods at his own risk.

41. Where is the place of delivery when the contract of sale is silent on the subject?

Where the goods are at the time of sale.

42. When are the goods to be delivered if no time is fixed by the contract?

Within a reasonable time.

43. What remedy has the vendee where the vendor delivers a lesser or a greater quantity of goods than that specified in the contract?

The vendee may refuse to accept the goods at all and treat the contract as broken, or he may accept what is delivered, in which event he becomes liable therefor at the

contract rate.

44. What duty is imposed upon the vendee upon the delivery of the goods?

To promptly inspect the goods to ascertain if they are in accordance with the contract. If not in accordance with the contract he should give notice of that fact to