II. Competency of Parties. 1. An Infant's Contract is Voidable Coursole v. Wyerhauser 69 Minn. 328 2. An Infant Can not Disaffirm a Conveyance of Real Estate Before Reaching His Majority. Welch v. Bunce 83 Ind. 382 III. Consideration. 1. A Past Consideration Will not Support a Promise. Roscorla v. Thomas 3 Q. B. 234 2. A Moral Obligation is not Sufficient to Support a Promise. Cook v. Bradley 7 Conn. 57 3. Signing a Subscription Paper and Pledging $5,500 to a Church Presbyterian Church v. Cooper 20 N. E. 352 4. An Architect was Under Contract to Superintend the Erec- Lingenfelder v. Wainwright Brewing Company 15 S. W. 844 FORM OF A CONTRACT OF SALE BIRD, ET AL. v. MUNROE See under Contracts, page 99 WHETHER A SALE IS COMPLETE OR NOT DEPENDS ON THE INTENTION OF THE PARTIES LINGHAM V. EGGLESTON 27 Mich. 324 (1873) COOLEY, J. The contest in this case relates to a sale of lumber by Eggleston to Lingham and Osborne, and the question involved is, whether the contract between the parties amounted to a sale in presenti and passed the title, or merely to an executory contract of sale. The lumber, subsequent to the contract, and before actual delivery to the purchasers, was accidentally destroyed by fire, and the purchasers now refuse to pay for it, on the ground that it never became their property. The action was brought by Eggleston for goods bargained and sold, and in the court below he recovered judgment. There appears to be very little dispute about the facts. The lumber was piled in Eggleston's mill yard at Birch Run. In September, 1871, he sold his mill to a Mr. Thayer, reserving the right to leave the lumber in the yard until he disposed of it. To most of the lumber the plaintiff had an exclusive title; but there were four or five piles which he owned jointly with one Robinson. The whole amount was from 200,000 to 250,000, excluding Robinson's share in the four or five piles. The defendants went to the mill yard September 23, 1871, and proposed to buy the lumber. Plaintiff went through the yard with them, pointed out the several piles, and designated those in which Robinson had an undivided interest, and also some piles of shingles which they proposed to take with the lumber. After examining the whole to their satisfaction, the defendants agreed upon a purchase, and the following written contract was entered into: Flint, September 23, 1871. Lingham and Osborne bought from C. Eggleston this day, all the pine lumber on his yard at Birch Run at the following prices; For all common, eleven dollars, and to include all better at the same price; and for all culls, five dollars and fifty cents per M., to be paid as follows: five hundred dollars to-day, and five hundred dollars on the 10th of October next; the balance, one half on the 1st day of January, A. D. 1872, and the rest on the 1st day of February following; said lumber to be delivered by said Eggleston on board of cars when requested by said Lingham and Osborne, which shall not be later than 10th of November next. Also some shingles at two dollars per M. for No. 2, and four dollars for No. 1. (Signed) LINGHAM & OSBORNE. CHAUNCEY EGGLESTON, JR. The $500 mentioned in this contract to be paid at the time of its execution was paid. A few days later defendants went to the mill yard in plaintiff's absence and loaded two cars with the lumber. He returned before they had taken them away, and helped them count the pieces on the cars, but left them to measure them afterwards. At this time the lumber in the piles had not been assorted, inspected, or measured. There was disagreement between the parties as to whether they had fixed upon. a person to inspect the lumber, the defendants claiming that such was the fact. On the 9th day of October, 1871, Lingham met plaintiff on the cars at Flint, and told him the fires were raging near Birch Run; that the lumber yard was safe yet, but that there were eight cars standing on the side track, and he had better go up to Birch Run and load what were there, and get what lumber he could away; plaintiff took the first train for the purpose, and while on the train the train boy gave him the following note from Lingham: Mr. Eggleston: You may load, say ten thousand, if you think best, on each car, and we can have it inspected as it is unloaded. I will try and come up to-morrow. When plaintiff reached Birch Run the fire was raging all about the mill, and that, with all the lumber in the yard, was soon totally destroyed by fire. Such are the undisputed facts in the case; and upon these the jury were instructed in substance that a completed contract of sale was made out, and the plaintiff was entitled to recover the purchase price. Where no question arises under the statute of frauds, and the rights of creditors do not intervene, the question whether a sale is completed or only executory, must usually be determined upon the intent of the parties to be ascertained from their contract, the situation of the thing sold, and the circumstances surrounding the sale. The parties may settle this by the express words of their contract, but if they fail to do so, we must determine from their acts whether the sale is complete. If the goods sold are sufficiently designated so that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in deliverable condition, or that the quantity or quality, when the price depends upon either or both, should be determined. All these are circumstances having an important bearing when we are seeking to arrive at the intention of the parties, but no one of them, nor all combined, are conclusive. . Upon this general principle there is no difficulty in reconciling most of the reported decisions. And even without express words to that effect, a contract has often been held to be a completed sale, where many circumstances were wanting and many things to be done by one or both the parties to fix conclusively the sum to be paid or to determine some other fact material to their respective rights. The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completely delivered to the purchaser, it is usually very strong, if not conclusive, evidence of intent that the property shall vest in him and be at his risk, notwithstanding weighing, measuring, inspection, or some other act is to be done afterwards. A striking case in illustration is that of Young v. Mathews, Law R., 2 Exch. 127, where a large quantity of bricks was purchased in kilns. Only a part of them were burned, and none of them were counted out from the rest; but they were paid for, and such delivery as in the nature of the case was practicable was made. The court held that the question was one of intention merely, and that it was evident the parties intended the title to pass. To the same effect are Woods v. Russell, 5 B. & Ald. 942; Riddle v. Varnum, 20 Pick 280; Bates v. Conklin, 10 Wend. 389; Olyphant v. Baker, 5 Denio, 379; Bogy v. Rhodes, 4 Greene (Iowa), 133; Crofoot v. Bennett, 2 N. Y. 258; Cunningham v. Ashbrook, 20 Mo. 553. So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to be paid, are still to be determined by the vendee. Turley v. Bates, 2 H. & C. 200; Kohl v. Lindley, 39 Ill. 195. And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for instance, to load the goods upon a vessel for transportation, the property may pass by the contract of sale notwithstanding. Whitcomb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520. But the authorities are too numerous and too uniform to justify citation, which hold that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted. What, then, are the facts in this case from which the intent of the parties is to be inferred? The lumber was specifically designated so that no question of identity could arise. It was not delivered, and the vendor was to place it on board the cars, if desired to do so, within a time specified; but as in any event the vendees were to take it at Birch Run, and it was optional with them to load it on the cars themselves or to have the vendor do it for them, and they had no right to require that he should do so after the day named, we think the circumstances that actual delivery was not made is not one of very much importance in the present discussion. What is of more importance is, that neither the quality nor the quantity was determined; and the evidence in the case shows that as to these there might very well be, and actually were, great differences of opinion. The price to be paid was consequently not ascertained, and could not be until the qualities were separated and and measurement had. It will be observed that the contract did not provide how or by whom the inspection and measurement should be made. It was certainly not the right of either party to bind the other party by an inspection and measurement of his own; it was the right of both to participate and we must suppose such was the intent, unless something clearly appears in the case to show the contrary. Nothing of that nature appears in the record except the disputed evidence of defendants, that a person was agreed upon for the purpose. The note sent by Lingham to Eggleston, proposing that the eight cars be loaded and that the vendees. make the proper inspection, was a mere proposition, and never acted upon. It is very evident Eggleston was under no obligation to trust this important transaction exclusively to the vendees, and we have no right to infer that he would have done so. It follows that something of high importance remained to be done by the vendor to ascertain the price to be paid; and as this, under all the authorities, was presumptively a condition precedent to the transference of the title,-nothing to the contrary appearing,-the court should have so instructed the jury. The instructions given were in substance directly to the contrary. It follows that the judgment must be reversed, with costs, and a new trial ordered. The other justices concurred. WHERE THE PROPERTY SOLD HAS BEEN INSPECTED AND APPROVED AND IS A PART OF A LARGER BULK OF THE SAME KIND AND QUALITY AND THE PURCHASE PRICE IS PAID, THE FACT THAT THE PART SOLD HAS BEEN SÉPARATED FROM THE REST, WILL NOT PREVENT THE TITLE FROM PASSING IF THE PARTIES SO INTEND HURFF V. HIRES 40 N. J. L. 581 (1878) Hurff, the plaintiff in error, in the fall of 1873, purchased of one Heritage two hundred bushels of corn, out of a lot of four or five hun |