of sale that a fixed price be agreed upon, or may be left to be fixed by inference or reference. "The appellant's counsel insists that, assuming the parties intended a sale, it was ineffectual to pass the property in the goods, by reason of the want of a fixed and agreed price. Such was the rule of the civil law, and Mr. Justice Story, says: 'It seems to be the very essence of a sale that there should be a fixed price for the purchase.' * "But the rule, established by repeated adjudications, is not so rigorous, and the price may be left to be fixed afterwards, by reference to market value, or by a designated person, or in any other way in which it may be ascertained with certainty, and then the sale is effectual, and the price determined; and especially is this so, when the thing is delivered to the purchaser. If nothing is said at the sale and delivery, the sum to be paid is what the goods are reasonably worth. 2 Benj. Sales, 102, 4 Am. Ed., in two volumes. It is only necessary to refer to a definite standard, that the price may be made certain. 1 Parson Cont. 459. "The only material matter to give effect to a sale, and the transfer of title, is to provide in the contract a definite and sure means of arriving at the sum to be paid, and when this is ascertained, it is the same as if it had been definitely agreed upon at the time of the sale, and the vesting of the property is referable to that time. "It is otherwise, if the price is left open for future adjustment between the parties, with no agreement, binding on each, as to how the price is to be ascertained, and what it shall be." Question 277: (1) A agrees to deliver and B agrees to accept and pay for a horse at a price to be later agreed on. Is there a sale? (2) Suppose the horse was actually delivered under the agreement and kept by B, but no price was ever agreed on. What rights has A? (3) A sale at a price to be determined by the market price on a future day. Is there a valid contract? (4) A sale between A and B at a price to be determined by C. Is there a contract? (5) A sale with no price expressly agreed upon and no way stated by which it can be fixed. Is there a contract? (6) A sale of articles having a market price, and nothing whatever said about price, is there a contract? Case 278. S. F. Bowser & Co. v. Marks, 96 Arkansas Reports, 113, 32 L. R. A., new series, 429. Facts: Suit to recover the price of an oil tank and pump. Marks had bought of Bowser & Co. another oil tank and pump of the same make two years previous, at which time the price was $45. Since that time the price had advanced to $55.00, at which the article was regularly selling. The defendant did not know of this advance. In ordering the pump nothing was said about price. The tank was promptly shipped, and a statement was mailed showing the price at $55.00. Defendant re-, fused to receive the goods and reshipped them to the plaintiff who refused to receive them. Point Involved: Whether the parties are to be deemed to have agreed upon the price, where the buyer is mistaken as to price and nothing is said about price, and the seller reasonably assumes that the buyer intends to pay the current price. "If the parties have agreed to all the other elements of the sale, and have made no reference to the price, then the law will by implication fix the price, which will be what the article is then reasonably worth. A contract not only includes the things said or written, but also terms and matters which, though not actually expressed, are implied by law, and these are as binding as those terms actually written or spoken.* "It is urged by counsel for appellees that there was a mistake in the price made by the parties, and that, on this account, the contract was not assented to by both, and therefore was not effective. It is contended that the appellees understood the price to be $45, and that appellant understood it to be $55. It is true that the appellees may have entertained an unexpressed intention to pay only $45 for the tank and pump. But an agreement is established by the words used, and the law imputes to the parties a meaning corresponding to those words. An unexpressed state of mind of one of the parties cannot effect the agreement as established by the words that are employed. In this case there was no dispute or disagreement about the price, and no misunderstanding by either party thereto. There was simply no references made to the price. It cannot be said, therefore, that there was any mistake made as to the price. The fact that appellees had purchased the same kind of article at a certain price in 1906 could not determine the price thereof in 1908. If they had intended to make the offer of purchase at the price paid in 1906, they should have 'made an express stipulation in their offer to that effect. Failing to name any price, the law implies that they intended to pay for the oil tank and pump the price that it was reasonably worth; and as to such an article as this, that would be the current selling price thereof at the time the offer to purchase it was accepted." Question 278: If the parties do not mention a price, what will be presumed as to price? Suppose there were no market price and no price expressly agreed on, would there be a contract? Why didn't the mistake as to price in this case prevent contract? § 315. (Sales, Sec. 28.) Conditional sales defined. (Note It is deemed desirable to add a separate chapter on "conditional sales." See chapter 47A, post. As the word. is generally employed, a conditional sale is a sale accompanied by a delivery to the buyer with a reservation in the seller of title for purpose of securing the payment of the purchase price.) § 316. (Sales, Sec. 29.) Sales distinguished from gift. (Note: A gift is a gratuitous transfer of personal property by the owner to another for the purpose of vesting the ownership in such other person: Delivery, actual or symbolic, is essential to gift. A promise to make a gift is unenforceable. If the promise to transfer is based upon a consideration it is not a promise to give, for a gift is a transfer without consideration.) B. Form of Contract. § 317. Sale in writing; oral or implied. Provisions of the Statute § 319. Statute of Frauds not applicable if price is less than a certain amount. § 320. Statute of frauds no defense if payment has been made in whole or in part. § 321. Statute of frauds no defense where there has been delivery and acceptance of all or part of the goods. § 322. Statute of frauds no defense where there is a sufficient signed memorandum. § 323. What is a contract of sale within the statute? § 317. (Sales, Sec. 30.) Sale in writing; oral; or implied. Case 279. Uniform Sales Act, Sec. 3. "Subject to the provisions of this act and of any statute in that behalf, a contract to sell, or a sale, may be made in writing (either with or without seal) or by word of mouth, or may be inferred from the conduct of the parties." Question 279: Outside of specific statutory requirement, may a contract of sale be oral? Implied? § 318. (Sales, Sec. 31.) Formalities required in certain cases. Provisions of the Statute of Frauds and Uniform Sales Act. (Note: The nature and purpose of the statute of frauds in relation to contracts was considered generally in the subject of contracts. It was there noticed that the 17th section of the English Statute of Frauds relating to contracts of Sales of Personal Property has been substantially re-enacted in the American states. Attention was also drawn to the Sales Act which substantially re-enacts the 17th Section of the Statute of Frauds, the text thereof being set out as Case No. 281 below. "The following should be observed with reference to this statute. First: The provision concerns the enforcement and in no sense the validity of the transaction. Therefore if the contract of sale has been executed or if the defense (of the statute) is not relied upon by the party sought to be charged, the provision has no application. Second: The statute does not apply at all if the goods are sold for a less sum than a certain value, this value differing in different states, Third: That a sale (of personal property) is enforceable notwithstanding there is no writing (a) If below the amount named; (b) If a part payment has been made; (c) If a part delivery has been made and received; (d) If a sale is of goods to be specially made up for the buyer (as hereinafter shown).) Case 280. Uniform Sales Act, Sec. 4. "A contract to sell or a sale of any goods or choses in action of the value of $500 or upward shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action or contract to be sold or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. "The provisions of this section shall apply to every such contract or sale, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in |