He must pay a reasonable price therefor." It is also said that an infant cannot, either by a parol contract, or a deed, bind himself, even for necessaries, in a sum certain, and that should an infant promise to give an unreasonable price for necessaries, that would not bind him. . . . Yet it hath been adjudged, and is admitted in several other books, that if an infant contract for necessaries, and enter into a single bill for payment, that this shall bind him"(); but the reasonableness of the price will, even in the case of a bond, be inquired into, just as if there had been only the simple contract (m). An infant cannot state an account; and it seems to follow that he has no consenting mind to agree to a definite price. And it appears to have been so decided in an early case (n), where it appeared that the necessaries "could not be afforded for a less sum than that charged. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. Sect. 8 (2), post, p. 61. The Act extends to lunatics, &c., the rule which was previously applicable to infants. No cases have been found stating the previous rule applicable to others than infants. Necessaries. These are defined at the end of the section, the first part of the definition being based on Peters v. Fleming (o) and Ryder v. Wombwell (p). The question whether certain goods are necessaries has hitherto generally been considered in connection with infants (q), but the Act now places infants, lunatics, and drunkards on the same footing. The term "necessaries" includes "articles purchased for real use, although ornamental, or distinguished from such as are merely ornamental, for mere ornaments can be necessary to no one (r); and it was said by Alderson, B., in Chapple v. Cooper (s), after advisement, that 'articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. . . . In all cases there must be personal advantage from the contract derived to the infant himself. The word 'necessaries' must, therefore, be regarded as a relative term, to be construed with reference to the infant's age, state, and degree" (†). (1) Bac. Ab. Infancy, c. 1, quoting Co. Litt. 172, and Russell v. Lee (1662), Lev. 86; Vin. Ab. Enfant, c. 7. (m) Per Lord Esher, M.R., in Walter v. Everard, [1891] 2 Q. B. 369, 373. (n) Pickering v. Gunning, Vin. Ab. Enfant, c. 10. ... (o) (1840), 6 M. & W. 43. (1) See, however, Manby v. Scott (r) Peters v. Fleming, supra. S. 2. S. 2. Actual requirements. And the Court, in Ryder v. Wombwell (t), say (quoting Peters v. Fleming):—"From the earliest time down to the present the word necessaries is not confined in its strict sense to such articles as were necessary for the support of life, but extended to articles fit to maintain the particular person in the state, degree, and station in life in which he is." This question is one of fact for the jury, the function of the Court being to say whether there is primâ facie evidence that the goods are necessaries (u). The latter words of the definition of necessaries in this section, viz., "actual requirements at the time of the sale and delivery," reproduce in part the law for the first time definitely laid down in Barnes v. Toye (v) and Johnstone v. Marks (x), where it was held that evidence was admissible to show that, though the goods supplied were of the class of necessaries, yet they were not necessaries to the infant, as he was already sufficiently supplied. And in such case it is immaterial that the seller knew or did not know of such existing supply. But the interpretation of the words themselves is difficult. The "actual requirements" of the buyer are to be determined, not, as was the case previously to the Act (y), at the date of the order, which is prima facie a reasonable rule, but "at the time of the sale and delivery." Now it is obvious that in many cases sale and delivery take place at different times, and it is hard to suppose that a section in a codifying Act was drawn to include only cases where sale and delivery took place at or about the same time, e.g., cases of sales over the counter. The words, taken in their most grammatical sense, refer to one time, though they may, perhaps, without violation of grammar, refer to two separate times. In the latter case the meaning would be "time of sale and also that of delivery." The result would be that if the buyer was sufficiently supplied at either the time of the sale, or the time of delivery, the goods would not be necessaries. Suppose, for instance, that, subsequently to the contract, and prior to the delivery, the buyer had been made a present of similar goods sufficient for his wants; or suppose the converse case, that he was sufficiently supplied at the time of sale, but (t) Ryder v. Wombwell (1886), L. R. 4 Ex. 32, at p. 38. (u) Ryder v. Wombwell, supra. It (v) (1884), 13 Q. B. D. 410. (y) Per Lopes, L.J., in Barnes v. Toye; Brett, M.R., in Johnstone v. Marks, however, speaks of "the time of the additional supply," which may mean "time of delivery." In Ford v. Fothergill (1794), 1 Peake, 301, the previous supply existed at the time of the order. previous to delivery the existing supply was, e.g., burnt in a fire. Would the goods ordered in both cases not be necessaries? Another interpretation may be suggested by reading the word "and" as "or." In this case the result seems strange, though not so hard upon the seller. Here he would be enabled to recover the price of necessaries if at either of the above times the buyer had "actual requirements." On the best consideration that the editors have been able to give to this difficult clause, they submit that the section must be taken, either as referring only to cases where sale and delivery take place uno ictu (with, however, the disadvantage above pointed out); or that the words must mean the time when the transaction becomes a sale and delivery, in other words, the time of delivery or supply. If this interpretation changes (as it seems to do) the previous law, the change is small, being only from the time of order to that of delivery; and the disadvantages, entailed by reading the words as referring to two separate times, are avoided. The meaning may, it is submitted, be not unreasonably elicited from the grammar of the words within the meaning of the canon of construction laid down by Lord Wensleydale, in Grey v. Pearson (z). "The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but no further." Under the above construction it would seem that where the goods are delivered to a carrier for transmission, the requirements of the buyer must be considered at that time. The status of the infant has, at any rate, been decided to date from that time (a). ILLUSTRATIONS. 1. A., a jeweller, sells to B., an infant undergraduate at the University, and the son of a gentleman of fortune and M.P., a watch-chain for 27. 28., a pin at 9s., and four or five rings at about 17. a-piece. The jury find that all the things are necessaries. There is evidence as a matter of law that the two first articles are, having regard to the condition in life of B., necessaries as being suitable to such condition. It is doubtful whether the other articles are such. Peters v. Fleming, (1840), 6 M. & W. 42. 2. A., a tailor, supplies B., an infant captain in the army, with uniform and other clothes. B. is in receipt (in addition to his pay) of an allowance of 500l. a year. This latter fact does not prevent the (z) (1857) 6 H. L. C. at p. 106; cited by Jessel, M. R., in Ex parte Walton (1881), 17 Ch. D. at p. 751. G. (a) Griffin v. Langfield (1813), 3 Camp. 255. S. 2. S. 2. Contract of sale, how made. S. 3. goods supplied from being necessaries, if they are otherwise such. Burghardt v. Hall (1839), 4 M. & W. 727. 3. A. supplies B., an infant captain in the army, with a livery for his servant, and cockades for the soldiers of his company. It being suitable to B.'s condition that he should have a servant, a livery was necessary but the cockades are not necessaries. Hands v. Slaney (1800), 8 T. R. 578. 4. A. supplies B., the son of a baronet, and with an allowance of 5007. a year, and entitled on majority to 20,000l., with a pair of jewelled solitaires worth 251., and an antique goblet worth 157. 158., intended as a present to a third person. Neither of these articles is a necessary. Ryder v. Wombwell (1868), L. R. 4 Ex. 32. Formalities of the Contract. 3. Subject to the provisions of this Act and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. Provided that nothing in this section shall affect the law relating to corporations. Subject to the provisions of this Act.-See s. 4 (note or memorandum, &c.); and s. 61 (3), which saves the enactments relating to bills of sale. And of any statute-e. g., Merchant Shipping Act, 1854, ss. 55-65 (bill of sale of ship); 31 Eliz. c. 12; and 2 & 3 Ph. & M. c. 7 (sale of horses): see s. 22 (2) of the present Act. For list of other statutes regulating sales of goods, see Benj. p. 537; these, unless expressly repealed by the Act, are saved by s. 61 (3). A contract of sale may be made.-"By the common law all that was required to give validity to a sale of personal property, whatever may have been the amount or value, was the mutual assent of the parties to the contract. As soon as it was shown by any evidence, verbal or written, that it was agreed by mutual assent that one should transfer the absolute property in the thing to the other for a money price, the contract was completely proven, and binding on both parties" (b). "But the common law does not prohibit parties from making contracts of which only part is in writing. . . . Parol evidence may be used to show what were the additions or exceptions [i. e., to or from a document], and the writing is conclusive as to the rest" (c). (c) Benj. p. 181. (b) Benj. pp. 4, 5. In writing. The meaning of the term "writing" will be found in s. 20 of the Interpretation Act, 1889. Where the writing is under seal, the contract is then called a bill of sale, i. e., an absolute bill. For an instance, see Carr v. Burdiss (d). Though the contract be in writing, trade usages, if consistent with the terms, are impliedly included (e), and also obligations which the law implies, as resulting from the written terms (ƒ). Or partly in writing.-If the words "with or without seal" are to be incorporated here, the clause would allow a contract of sale to be proved partly by the deed and partly verbally. Would it be competent to the parties having entered into a specialty, to vary it verbally, and thus make a new contract? (g). Where parol evidence is otherwise admissible, the fact that the instrument is under seal forms no insuperable objection to its reception (h). Or may be implied from the conduct of the parties.—"The assent of the parties to a sale need not be express. It may be implied from their language (i), or from their conduct (k); may be signified by a nod, or a gesture, or may even be inferred from silence in certain cases; as if a customer takes up wares off a tradesman's counter and carries them away, and nothing is said on either side, the law presumes an agreement of sale for the reasonable worth of the goods (2). Various instances of implied contracts will be found in the illustrations given on the next page. S. 3. Whether or not the "implied" contract of sale under this Quasi consection is or is not intended to cover cases which may be described tracts. as quasi contracts (in other words, to include contracts "implied by law" as well as inferred" from facts or conduct), it seems most convenient to refer to them under this section (m). These cases would appear to give rise to quasi contractual obligations. They may be shortly summed up as follows: (1.) The owner of goods may adopt a tortious sale made by (d) (1835), 1 C. M. & R. 782. (e) Per Parke, B., in Hutton v. Warren (1836), 1 M. & W. at p. 475. (f) Blackb. p. 41. (g) See Nash v. Armstrong (1861), 10 C. B. N. S. 259. (h) See notes to Wigglesworth v. Dallison, 1 Sm. L. C. (9th ed.), pp. 577, 595. (i) Joyce v. Swann (1864), 17 C. B. N. S. 84 (grumbling assent). (k) Brogden v. Met. Ry. Co. (1877), 2 Ap. Ca. 666. (1) Benj. pp. 42, 43. (m) As to implied contracts of sale, see Benj. p. 57. |