Up To Date Business

V >> Various >> Up To Date Business

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22

Suppose B should in fact receive A's offer first in consequence of the
neglect of the telegraph company to deliver A's message of withdrawal
promptly, which if delivered as it should have been would have reached
B before the letter containing the offer, what then? A doubtless
would be bound by his offer, but perhaps he could look to the
telegraph company for any loss growing out of the affair. If he could
show that he had been injured by fulfilling the contract the telegraph
company might be obliged to pay this.

Let us carry the inquiry a little further. Suppose the messenger on
receiving the telegram took it to B's office and it was closed and he
made diligent inquiry concerning B's whereabouts and was unable to
find him. Suppose he had gone off to a horse race or to a football
game, would it be the duty of the messenger boy to hunt him up at one
of these places? By no means. If B was not at his place of business
when he ought to have been, the company would not be bound to deliver
the message to him elsewhere, except at his house, unless he had left
a special direction with the company concerning its delivery.
Generally a telegraph company states very clearly its mode of
delivering messages and the time when it will do so, the place, etc.,
to which it will take them, and it is not obliged to hunt all over
creation to find the person to whom a message is addressed. That would
be a very unreasonable rule to apply. Therefore, if the company did
its duty A could not recover anything from it. Would A, then, it may
be asked, be obliged to fulfil his contract with B? He has sent his
withdrawal, which if delivered in time would have been received by B
before the letter containing the offer. B, however, is away from his
place of business, and perhaps is where he ought not to be--perhaps he
is playing poker or doing something worse--ought A under such
circumstances to be held by his offer? This is a closer question and
one that we will leave our readers to think over. Surely A would have
a strong reason for claiming that he ought not to be held under such
conditions.

A person who makes an offer cannot turn it into an acceptance. An old
uncle offered by letter to buy his nephew's horse for $100, adding:
"If I hear no more about the matter I consider the horse as mine." The
uncle, not hearing from the nephew, proceeded to take the horse. At
this stage of the proceedings, however, the nephew was not inclined to
suffer his good old uncle to make the contract entirely himself, and
refused to give up the horse. The court said that one person could not
do all the contracting himself, and this is what he virtually
undertook to do. If a person could, by correspondence or otherwise,
make a contract in this manner, one can readily see the dangers that
might follow. Some positive act must be put forth by the other party
showing or indicating his assent before it will be regarded as given.
A person, in truth, is not obliged to pay any attention to an offer of
this kind.

Rewards are often made. They are found almost every day among the
newspaper advertisements. These are binding under various conditions.
An interesting question has been raised in the case of a runaway horse
whose owner has made an offer to any finder who returns him. Suppose a
person at the time of catching the animal did not know of the reward
but does know of it when returning the beast to his owner; can he
claim the reward? This question has somewhat puzzled the judges, but
the more recent opinion is that the catcher can claim the reward like
a person who knew at the time of stopping the pleasure of the runaway.
Of course, there is no question concerning these rewards when they are
known at the time of acting on them.

In one of the cases tried not long since, an old farmer offered a
reward of $15 to any one who would find the person who had stolen his
harness and also $100 to the man who would prosecute the thief. The
harness, in truth, was worth not even this small sum and the thief
still less. Yet he was caught and prosecuted, and then the prosecutor
and finder claimed the rewards. The farmer's excitement had cooled off
by this time and he was not so loud and liberal as he was at the time
of finding out his loss. He refused to pay, saying that he did not
really mean to offer these sums as rewards, and the court decided in
his favour, declaring that his offer of reward could not be regarded
strictly as one, but rather "as an explosion of wrath." In another
case a man's house was burning up and his wife was inside, and he
offered any one $5000 who would go in and bring her out--"dead or
alive." A brave fellow went in and rescued her. Then he claimed the
reward. Was the man who made the offer obliged to pay, and could he
not have escaped by insisting that this was simply "an explosion of
affection" and not strictly an offer or promise of reward? He tried to
hold on to his money, but the court held that this was an offer he
must pay. Possibly after the recovery of his wife his valuation of her
had changed somewhat from what it was while his house was burning up.

One or two more cases may be given. Some persons who prepared
"carbolic-smoke balls" offered to pay L100 to any person who
contracted influenza after having used one of the balls in the manner
clearly set forth and for a stated period. This offer was in the form
of a newspaper advertisement. A person bought one of them and followed
carefully all the directions about its use. The influenza, though, did
not disappear as advertised, so he sued to recover the offer; and,
having proved clearly that he had complied faithfully with the
directions and had not been cured, the court said that the owners must
pay up and compelled them to give him the L100 offered.

Another case may be briefly mentioned. A offered to sell B his farm
for $1000. B offered $950, which offer was declined. Then B offered
to pay $1000. By that time A had changed his mind and declined to
accept B's offer. Then B sued to get the farm, offering to pay the
money; but the court held that B had declined A's offer and
consequently that, as A had not made any other offer, there was no
contract.

Finally, it may be added that the phrase "by return mail" does not
always mean by the next mail, although the person to whom the offer is
made cannot delay his answer long. On the other hand, the person to
whom such a letter may be addressed can bind the other by an
acceptance very quickly after the receipt of the offer, although not
literally by the first mail going out.

VII. WHAT CONTRACTS MUST BE IN WRITING

_Some contracts must be in writing to be valid_; for instance,
contracts relating to the sale and leasing of lands. This writing must
be signed by the person who is charged with having made it. Suppose
that A has sold his farm to B for an agreed sum and refuses to give
him a deed on his payment of the amount or offer to pay, and B wishes
to compel A to carry out or execute his agreement. B must show a
writing signed by A to that effect, otherwise the court will not pay
any attention to the matter. On the other hand, if A claims that such
an agreement has been made with B, who is unwilling to pay the money
and receive the deed, he must show in court a writing signed by B that
he has agreed to purchase the farm at a stated price and to receive a
deed of the same. If such a writing is not forthcoming when required,
he cannot recover anything from him. This is the meaning of the
phrase, therefore, that a writing must be signed by the party charged
with having made the agreement.

_The writing need not be very formal._ It need not specify the amount
that is to be paid; in other words, it need not specify the
consideration. Some courts say, however, that it must contain this
fact or statement. It may be in pencil. I presume it would be
sufficient if written on a blackboard with chalk. But it must be a
writing of some kind signed by the party to be charged; that is the
essential thing. The courts have also said that this writing need not
be on a single piece of paper. If the two parties have made an
agreement by a series of letters, an offer on the one side and an
acceptance on the other, and the agreement can be fully shown from the
series of letters, this is sufficient writing.

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.

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22