agreed upon is invalid because made on Sunday, 15 the law will imply a contract to pay a reasonable value. But when the contract fixes the price, that price governs and the reasonable value cannot be awarded in its place." 16 MARKET PRICE.-The reasonable value is ordinarily the market price at the time and place of delivery," but not when the market price is manipulated by a combination.18 The price is Pick.) 175; Taft v. Travis, 136 Mass. 95; James v. Muir, 33 Mich. 223; Comstock v. Sanger, 51 Mich. 497; Lovejoy v. Michels, 88 Mich. 15, 13 L. R. A. 770; Boswell v. Green, 25 N. J. L. (1 Dutch) 390; Acebal v. Levy, 10 Bing. 376; Hoadly v. McLaine, 10 Bing. 482; 1 Mechem on Sales, §§ 206, 207, 208; Benjamin on Sales, § 85. A reasonable value cannot exceed the agreed price alleged. Tucker v. Cady, 25 Ill. App. 578; Livingston v. Wagner, 23 Nev. 53; Konitzky v. Meyer, 49 N. Y. 571; Sussdorf v. Schmidt, 55 N. Y. 319; Trimble v. Stillwell, 4 E. D. Sm. (N. Y.) 512. In executed contracts "where the seller, whether by actual delivery or other like unequivocal act, intentionally passes the property in specific goods to the purchaser without fixing the price, the law leaves the price to be adjusted by the agreement of the parties, or, if they fail to agree, by the verdict of the jury. Shealey v. Edwards, 73 Ala, 175. "Goods may be sold and are frequently sold when it is the intention of the parties to bind themselves by a contract which does not specify the price or mode of payment, leaving them to be settled by some future agreement or to be determined by what is reasonable under the circumstances." Valpy v. Gibson (1847), 4 C. B. 837, 864. 15. Bradley v. Rea, 96 Mass. (14 Allen) 20, 103 Mass. 188. 16. Illinois Linen Co. v. Hough, 91 Ill. 63. 17. McEwen v. Morey, 60 Ill. 32; Smith v. Griffeth, 3 Hill (N. Y.), 337; Kountz v. Kirkpatrick, 72 Pa. St. 378; Fenton v. Braden, 2 Cranch, C. C. 550. "The only absolute test there can be of the value of a merchantable article is what it has been sold for at a fair sale. All other means of ascertaining the value of a merchantable commodity are speculative and must, to a greater or less extent, be uncertain. A sale is a demonstration of the fact, while estimates even by the best judges are simply matters of opinion, which at best are only approaches to the fact." Budd v. Van Orden, 33 N. J. Eq. (6 Stew.) 143, 146, 147. 18. Denver, etc., Ry. Co. v. Atchison, etc., Ry. Co., 15 Fed. 650; Wright v. Ryder, 36 Cal. 342; W. U. Tel. Co. v. Am. Union Tel. Co., 65 Ga. 160; Faulds v. Yates, 57 Ill. 416; Craft v. McConoughy, 79 III. 346; R. R. Co. v. Closser, 126 Ind. 348, 9 L. R. A. 754; Anderson v. Jett, 89 Ky. 375, 6 L. R. A. 390; India Bagging Association v. Koch, 14 La. Ann. 168; Raymond v. Leavitt, 46 Mich. 447; Richardson V. Buhl, 77 Mich. 632; 6 L. R. A. 457; People v. Refining Co., 54 Hun (N. Y.) 354, 5 L. R. A. 386; Arnot v. Coal Co., 68 N. Y. 558; Carbon Co. v. McMillan, 119 N. Y. 46, 7 L. R. A. 46; Stanton v. Allen, 5 Den. (N. Y.) 434; Salt Co. v. Guthrie, 35 Ohio St. 666; Morris Run Coal Co. v. Barkley Coal Co., 68 Pa. St. 173; West Virginia Trans. Co. v. Ohio River P. L. Co., 22 W. Va. 600, 617; Hilton v. Eckersley, 6 E. & B. 47. "The current price of the day may be highly unreasonable from acci payable in cash unless otherwise agreed,19 in which case the price may be paid in any personal property at fixed rates.20 Or if the rate is not fixed, the buyer has the option to pay in goods or in money." If payment be not made when due, the option is lost 21 dental circumstances as on account of the commodities having been purposely kept back by the vendor himself or by reference to the price at other ports in the immediate vicinity or from various other causes." Acebal v. Levy, 10 Bing. 376. "I do not think a price so fixed by a combination of manufacturers or dealers is competent evidence to show a reasonable price of goods sold by the members of such combination. Such combinations to control prices are intended to stifle competition, which is a stimulus of commercial transactions, and to substitute there. for the stimulus of unconscionable gain, whereby the participants in such combinations become enriched at the expense of the consumer, beyond what he ought legitimately to pay under a healthy spirit of competition in a business community. . . Such combinations to control prices are against public policy, and void, on the ground that they have a mischievous tendency, so as to be injurious to the best interests of the State... I am also of the opinion that such price so fixed is no criterion of the market value or current price in an action brought for goods sold and delivered where no price has been agreed upon." Lovejoy v. Michels, 88 Mich. 15, 13 L. R. A. 770. 19. Hassard v. Hardison, 117 N. C. 60; 2 Mechem on Sales, § 1421. The parties may agree to the payment of the price in any form of money. In the absence of such agreement, the current money of the country is intended. Hendry v. Benlisa, 37 Fla. 609, 34 L. R. A. 283. 20. Johnson v. Dooley, 65 Ark. 71, 40 L. R. A. 74; Mattox v. Creig, 5 Ky. (2 Bibb.) 584; Cole v. Ross, 48 Ky. (9 B. Mon.) 393; Heywood v. Heywood, 42 Me. 229; Smith v. Smith, 2 Johns. (N. Y.) 235; Pinney v. Gleason, 5 Wend. (N. Y.) 393; Trowbridge v. Holcomb, 4 Ohio St. 38; Cleveland, etc., R. R. Co. v. Kelley, 5 Ohio St. 180; Edgar v. Boies, 11 S. & R. (Pa.) 445; Perry v. Smith, 22 Vt. 301; 2 Mechem on Sales, §§ 1439 et seq. Contra: Benjamin on Sales, § 85. A note for $250 payable twelve months after date in brown cotton shirting at $0.30 a yard furnishes the rule of damages, and evidence that brown cotton shirting is of less value at the time the note became payable is admissible. Brooks V. Hubbard, 3 Conn. 58. The discharge of a debt due the vendee from the vendor or a promise to pay the debts of the vendor due a third person is a good consideration. Meade v. Smith, 16 Conn. 346, 358. The vendor agreed to take the price in stock of either G. or D. railroads. This did not give the vendee the right to select the stock. Aldrich v. Bay State Const, Co., 186 Mass. 489. Demand of a note payable in farm produce should be made at the maker's farm; of a note payable in merchandise or manufactures at the merchant's store or the manufacturer's shop. Jewett v. Bacon, 6 Mass. 60. Where the note of a third person is received in payment and the maker of the note becomes insolvent before delivery of the goods, the vendor is not bound to receive the note or deliver the goods. Shealey v. Edwards, 73 Ala. 175. 21. Wilkins v. Stevens, 8 Vt. 214; Perry v. Smith, 22 Vt. 301; Kent v. Bowker, 38 Vt. 148; Smith Coolidge, 68 Vt. 516. V. and payment in money may be enforced." Tender is not payment unless accepted. If payment is to be made in real estate or any interest therein, the Act by express provision does not apply.24 Section 10. Sale at a Valuation.—(1.) Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third person, and such third person, without fault of the seller or the buyer, can not or does not fix the price or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. (2.) Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have such remedies against the party in fault as are allowed by Parts IV and V of this Act. Where the contract provides that the price be determined by appraisers and the parties fail to appoint them, or the appraisers, without fault of the parties, fail to act, the contract is abandoned;1 but if the goods have been delivered and consumed or appropriated 22. Johnson v. Dooley, 65 Ark. 71; Stone v. Nichols, 43 Mich. 16; News Pub. Co. v. Nat. Steamship Co., 148 N. Y. 39; Pinney v. Gleason, 5 Wend. (N. Y.) 393; Roberts V. Beatty, 2 P. & W. (Pa.) 63; Church v. Feterow, 2 P. & W. (Pa.) 301; Choice v. Moseley, 1 Bailey (S. C. L.) 136; Dunman v. Strother, 1 Tex. 89; Baker v. Todd, 6 Tex. 273; Deel V. Berry, 21 Tex. 463; Perry v. Smith, 22 Vt. 301; Read v. Sturdevant, 40 Vt. 521; Smith v. Coolidge, 68 Vt. 516. Where the vendee agreed to pay for personal property certain shares of stock, which he failed to deliver, the value of the stock when the contract was made is evidence of the agreed value of the property. Humaston v. Am. Tel. Co., 87 U. S. (20 Wall.) 20. 23. Van Cleave v. Beach, 110 Ind. 269; Thompson v. Kellogg, 23 Mo. 281; Jenkins v. Mapes, 53 Ohio St. 110, 115. 24. As to whether fixtures are real estate or personal property, see sec. 76. Real estate part consideration.-A horse warranted to be gentle was sold for $50 and a tract of land; the horse was vicious and the land incumbered. In an action on the breach of warranty, the incumbrance could not be shown in defense. (This transaction would not be affected by this act.) Platt v. Brown, 30 Conn. 336, 341. Stock of goods and assignment of lease as an entire contract. Knight v. N. E. Worsted Co., 56 Mass. (2 Cush.) 271; Jacobson v. Sullivan, 52 Mass. 480, 9 L. R. A. 508. 1. Hutton v. Moore, 26 Ark. 382; Hyde v. Boston & Barre Co., 38 Mass. (21 Pick.) 90, 93 (executory contract); Holbrook V. Setchel, 114 Mass. 435 (executed sale); Fuller v. Bean, 30 N. H. 290; Thurnell v. Balbirnie, 2 M. & W. 786; Cooper v. Shuttleworth, 25 L. J. Ex. 114; 1 Me by the vendee, he is liable for their reasonable value. If, however, one party refuses to proceed with the contract, or prevents the valuation, it is equivalent to performance by the other party;3 but the injured party cannot sue for the contract price, for none has been fixed. The law, therefore, implies a promise under the agreement to pay the reasonable value, which the jury determines.' CONDITIONS AND WARRANTIES. Section 11. Effect of Conditions.-(1.) Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first-mentioned party may also treat the non-performance of the condition as a breach of warranty. (2.) Where the property in the goods has not passed, the buyer may treat the fulfilment by the seller of his obligation to furnish goods as described and as warranted expressly or by implication in the contract to sell as a condition of the obligation chem on Sales, § 213; Benjamin on 3. Smyth v. Craig, 3 W. & S. (Pa.) Sales, § 87. 14. "In such case, if the valuers refuse to fix the price, the sale is considered incomplete, or else as rescinded by the refusal." Wittkowsky v. Wasson, 71 N. C. 451. 2. U. S. v. Wilkins, 19 U. S. (6 Wheat.) 135; Kenniston v. Ham, 29 N. H. (9 Fost.) 501, 506; Holliday v. Marshall, 7 Johns. (N. Y.) 211; Albemarle Lumber Co. v. Wilcox, 105 N. C. 34; Inchbald v. Western Plantation Co., 17 C. B. (N. S.) 733; Hall v. Conder, 2 C. B. (N. S.) 22, 53; Cowper v. Andrews, Hobart, 40, 43. "If, indeed, the thing sold has been delivered to the vendee and consumed, so that the parties cannot be put in statu quo, the vendee is liable for a reasonable price." Wittkowsky v. Wasson, 71 N. C. 451. 4. Clarke v. Westrope, 18 C. B. 765. The company covenanted to pay this value, to be ascertained in a particular mode, and as they have prevented this mode being adopted, they cannot take advantage of their own wrong and deprive the plaintiff of the opportunity of showing to the court and jury what it is. In lieu of the award of the arbitrators, the verdict of the jury can be asked by the plaintiff to determine it." Humaston v. Am. Tel. Co., 87 U. S. (20 Wall.) 20. "If, in such case, the thing was actually delivered and consumed, the vendee would be liable, not upon the special imperfect contract, but on an implied contract to pay a reasonable price." Wittkowsky v. Wasson, 71 N. C. 451 of the buyer to perform his promise to accept and pay for the goods. An affirmation or promise concerning the goods expressly made, or implied by law from the tacit understanding of the parties, which is an integral part of the contract to sell, may be treated by the obligee as, 1. A condition, for the non-performance of which, unless waived or excused, he may refuse to perform, or, if he has performed, may rescind the contract and recover what he has parted with;1 or, 2. A warranty, for the breach of which he may, 1. Goodrich v. Laffin, 18 Mass. (1 Pick.) 57; 2 Mechem on Sales, § 1218. Mr. Benjamin has deduced the following rules for determining the intention of the parties as to the dependence or independence of stipulations of an agreement: 1. "Where a day is appointed for doing any act and the day is to hap pen or may happen before the promise by the other party is to be performed, the latter may bring action before performance, which is not a condition precedent; aliter, if the day fixed is to happen after the performance, for then the performance is deemed to be a condition precedent. 2. "When a covenant or promise goes only to part of the consideration, and a breach of it may be paid for in damages, it is an independent covenant, not a condition. 3. "Where the mutual promises go to the whole consideration on both sides, they are mutual conditions precedent, formerly called dependent conditions. 4. "Where each party is to do an act at the same time as the other, as where goods in a sale for cash are to be delivered by the vendor, and the price to be paid by the buyer-these are concurrent conditions, and neither party can maintain an action for breach of contract without averring that he performed or offered to perform what he himself was bound to do. 5. "Where, from a consideration of the whole instrument, it is clear that the one party relied upon his remedy, and not upon the performance of the condition by the other, such performance is not a condition precedent. But if the intention was to rely on the performance of the promise, and not on the remedy, the performance is a condition precedent." Benjamin on Sales, § 562, and cases cited. "In chancery, the breach of a condition, whether precedent or subsequent, is always relieved against, if compensation can be made." Enfield Bridge Co. v. Conn. River Co., 7 Conn. 28, 45. Citing Walker v. Wheeler, 2 Conn. 299. "When a contract of sale is not of a specific article, but is an executory agreement of sale calling for the delivery to the vendee of goods like a certain sample, or of a particular kind or description, or for the manufacture of an article in a certain manner, or for a specified purpose, the vendee within a reasonable time after receiving them and before accepting them, may return them to the vendor if they do not 'conform to the sample which is the basis of the contract, or the order made upon the manufacturer or seller of the goods.' The reason of the rule is that the vendor having failed to fulfil his contract to deliver that which was ordered, the vendee cannot justly be required to accept and pay for goods which dif |