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is liable for injuries to employees of the independent contractor due to defects in ways, works, machinery, plant, or tools, furnished by the employer or for whose use he is responsible. Such a provision occurs in the Workmen's Compensation Act of at least one State. The Common Law may in some cases hold him equally responsible without such a statute.

GENERAL STATUTE REQUIREMENTS FOR EMPLOYERS

To Secure Health and Safety. There are other statute laws in many States, affecting manufacturing and other establishments, for the purpose of better protecting the safety or health of employees; for guarding dangerous machinery; for inspecting elevators and steam boilers; for prescribing fire protection and means of escape; for improving sanitary conditions; for regulating work in tenements; for fixing maximum hours for work for women and children; and for many other purposes.

To secure greater safety in railroad operation there are requirements with relation to signals, brakes, couplers, clearances, frogs and guard rails, hours of service, number of crew on trains, and many others.

The statutes of each State must be examined and also the statutes of the United States, which in the case of railroads exercise important powers of regulation for safety under the so-called Interstate Commerce Act.

BAILMENTS

Definition. There seems to be some necessity for differentiating bailments from agency. Bailment occurs when personal property is transferred temporarily for some special purpose without transfer of title and with little or no authority vested in the bailee other than to care for the property.

Classification. Bailments are of two general classes: I. Gratuitous bailments, for the benefit of one of the parties to the bailment. II. Bailments upon consideration, for the mutual benefit of the parties.

In class I, they may be for the benefit of the bailor, where the property is gratuitously kept or carried, or worked upon; or they may be for the benefit of the bailee, when the thing is lent to him. In class II, they are pledges, as security for performing some obligation, for payment of a debt, or in contracts of hiring. There are four cases of hiring: the bailor may hire the bailee to do work on something; or to take custody of it (store it); or to carry it from place to place; or the bailee may hire from the bailor.

Consideration. As to consideration, which seems necessary under the law of contracts, in bailments for mutual benefit it is directly evident; in gratuitous bailments the deprivation of possession is evidently a detriment

to the bailor, which constitutes a sufficient consideration, while the viewpoint of the law seems somewhat stretched in holding that "the owner's trusting him with the goods is a sufficient consideration to oblige him to a careful management." The doctrine comes from the Civil Law; and the Common Law, from necessity apparently, finds means to harmonize it. Bailments occurring through the action of law, and some others, may exist without the mutual assent of the parties; here again the law of contracts seems not altogether applicable.

Delivery. For a bailment to occur, delivery and acceptance of the property are necessary, but these may be constructive instead of actual, or may come about by operation of law. A seller who holds goods after a sale (not a contract to sell) does so as bailee. Constructive delivery may occur where manual delivery is impossible. An officer holding goods under legal process is a bailee. Being in possession, the bailee may exercise rights against any third party but may not dispute the bailor's title.

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Care. An important feature is the care demanded of the bailee. At one time the terms "slight," "ordinary," and "great" diligence were used, depending upon the apparent advantage to the bailee; but the better rule now seems to be that the bailee must exercise reasonable care under the circumstances of the case," somewhat analogous to the rule as to negligence. The care and responsibility may be fixed by specific agreement. The bailee must in any case act in good faith and must return the property to the bailor at the termination of the bailment, which may occur by the act of the parties or by operation of law. The place of delivery ordinarily is the place where the goods have been kept. The bailment may sometimes be at the option of the bailor; it may be terminated by full performance, or by mutual agreement; the termination may come about by the death of one of the parties, or by a change in their legal status, or by destruction of the property.

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Definition. The term

CHAPTER IX

SALES

sales" is in common use, in a technical sense, to cover sales of personal property. Where an agreement is made for the transfer of personal property from one party to another, the transaction may be a "sale"; it may be only a "contract to sell"; or it may be a contract for labor and materials." The distinction is in many cases important. In the practical working of the Common Law, it has come about, with respect to sales or contracts to sell, that the law in different States varies appreciably. This may have been due to different business customs in different places, to a different point of view of the various courts as to what was right and just when the law took form, or in part to both causes. Whatever the explanation, the fact of difference is undisputed and is a serious handicap to the proper conduct of business.

Uniform Sales Act. Recently an important effort to improve the situation has resulted in what is known as "The Uniform Sales Act" prepared for the purpose of securing uniformity of law in the various States. In 1913 it had been adopted in nine States, and in 1917 in twelve or more. The following definitions are there given:

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"A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price.

"A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price."

Distinction between Sales and Contracts to Sell. The important difference between a sale and a contract to sell is here outlined; it lies in the effect. A sale is substantially a conveyance; the buyer acquires title and the right to possession of the specific goods, sometimes even in the hands of a third party, and any subsequent gain, or loss, or risk, is the buyer's.

With a contract to sell, the buyer does not acquire the right to the specific goods; his remedy against the seller for non-delivery or non-compliance with the contract is confined to a suit for money damages in a court of Law; the risk is the seller's unless otherwise fixed by specific agreement. In some cases the right to the goods is the most important consideration;

in others, the risk is primarily to be considered and a contract to sell may be more to the buyer's advantage.

The terms "bargain and sale" and "contract for future sale" are sometimes used instead of "sale" and "contract for sale."

Labor and Materials. It is sometimes difficult to distinguish between contracts to sell or perhaps from sales on the one hand, and contracts for labor and materials on the other. The rule or standard by which to distinguish between them differs in different States. In this connection, immediate delivery was at one time considered essential for a sale but is no longer insisted on. One rule provides that it is not a sale or a contract to sell if the use of labor in producing is a part of the consideration; another insists that where material to be worked upon is the seller's, he is working for himself and not for the buyer, and that it is a contract to sell or a sale; another takes the view that where the material is in form requiring work before delivery, it is a contract for labor and materials; another test rests upon the question whether the labor is the essential ingredient; still another which has found favor in several jurisdictions, looks to see whether the article ordered is such as the seller produces for the market in the ordinary course of business, or whether he has taken a special order for it. To distinguish correctly, one must know the law of the State in which the transaction occurs, and much of this is Common Law to be hunted out from the decisions of the courts. No general rule for guidance can be laid down here, however desirable it may seem. An important feature involved is that the Statute of Frauds has no application in the case of labor and materials, while it does apply to contracts to sell.

Basis is Contract. Whether a transaction is a sale, a contract to sell, or a contract for labor and materials, the basis is that of contract. A sale is sometimes called an "executed" contract, but valid objection to this is made that in case of a sale there are often things yet to be done, such as delivery by the seller or payment by the buyer.

At the outset four important questions arise: first, has there been any contract? second, if so, was there a sale? third, was there merely a contract to sell? fourth, was the contract for labor and materials?

Contract Essentials. If there was no contract, the matter ends there. It should be remembered that for a contract to exist, the four essentials are necessary; mutual assent, competent parties, consideration, definite and lawful subject matter. It should further be borne in mind that the Statute of Frauds requires that certain contracts shall be in writing, without which they are unenforceable and might as well not exist.

Involuntary Sale. While a sale, as a contract, requires mutual assent to its terms, what has been called an involuntary sale sometimes occurs where a court grants money damages for goods taken away from a person

in some way (the goods not being returned). Here an agreement to pay is apparently implied; the doctrine differs little if any from that of implied contract referred to in a previous chapter.

Important Features. Many interesting points are involved in the law of sales. Among these are possession, title, delivery, receipt, and acceptance; the rights, duties, and remedies of the parties and of third persons; and the risk which is a matter of importance to be considered.

Sale or Contract to Sell. In general, the seller passes, or engages to pass, the general property in a thing and to deliver possession for a price paid. Payment and giving of possession may take place at the same time or at different times. Whether the transaction in a given case is a sale or merely a contract to sell, is not always easy to determine.

When two persons negotiate and agree and the price is paid, delivery is made, and receipt and acceptance are accomplished, the case is clear; a sale is effected. When the price is not paid, and actual possession is not at once secured, the case is less simple; where the terms are clear, no difficulty results; but where inferences need to be made as to time of performance or otherwise, even judges have not always been sound in their opinions. A contract for future delivery may sometimes be a sale rather than a contract to sell; the law looks beyond the mere language to distinguish between a present sale and a contract for future sale; the intent, however determined, controls. The courts of some States, however, refuse to recognize a present sale when delivery and payment are to take place in future.

Ordinary Rule. The rule ordinarily is that a sale is confined to ascertained, existing goods, the property of the seller, title to which may pass at once; but for goods not in existence, or to be ascertained, or to be acquired or manufactured by the seller, the transaction commonly is a contract to sell. Natural products or expected increase, as offspring of animals, future crops of land, wages to be earned under an existing contract, or a mortgage resulting from an existing contract, however, may be the subject of a present sale; the title is potential, ripening into actual on the occurrence of the contemplated result. It is a sale to the extent that a later sale to a third party will be set aside.

Specific Goods. An agreement for the sale of specific goods is prima facie a sale, vesting title in the buyer and the right to the price in the seller, although future delivery is provided for as to time or place. When, however, the seller engages to do something further to put the goods into deliverable state, the presumption is that passing of title is to be postponed; in this case notice to the buyer of readiness for delivery seems to be required in some States and not in others, and a specific agreement as to this seems desirable at the time when the transaction is entered upon.

Immediate Delivery. On the other hand, there may be only a contract

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