A sale of a chattel is an exchange thereof for money; but a sale is distinctly discriminated in many respects from an exchange in law; an exchange being the giving of one thing and the receiving of another thing; while a sale is the giving of one thing for that which is the representative of all values. (g)l

(e) Malcom v. Loveridge, 13 Barb. 372; Hall v. Hinks, 21 Md. 406; Keyser v Harbeck, 3 Duer, 373 See also Williams v. Given, 6 Gratt. 268; Jennings v. Gage, 13 Ill. 610; Titcomb v. Wood, 38 Me. 561; Caldwell v. Bartlett, 3 Duer, 341; Smith v. Lynes, 1 Seld. 41; Crocker v. Crocker, 31 N. Y. 507; Hutchinson v. Watkins, 17 Iowa, 475; Shufeldt v. Pease, 16 Wis. 659. So in England, Kingsford v. Merry, 34 E. L. & E. 607; s. c. 11

Exch. 577. Mich., etc. R. Co. v. Phillips, 60 Ill. 190; Young v. Bradley, 68 Ill. 553. This is doubted, however, in Sawyer v. Fisher, 32 Me. 28.

(ee) Butters v. Haughwout, 42 Ill. 9.

(ef) Ballard v. Burgett, 47 Barb 646.

(f) Boulton v. Jones, 2 Hurls & Norm. Exch. 564; Boston Ice Co. v. Potter, 123 Mass. 28.

(g) The distinction between sales and exchanges is well pointed out in an anony1 For breach of agreement to exchange, the declaration should be special. Stevenson v. State, 65 Ind. 409; Edwards v. Cottrell, 43 Ia. 194. When the same thing, though changed in form, is to be returned, it is bailment; when another thing of equal value may be returned, it is a sale. Lonergan v. Stewart, 55 Ill. 44: Rahilly v. Wilson, 3 Dillon, 420; Schlesinger v. Stratton, 9 R. I. 578; Hughes v. Stanley, 45 Ia. 622; Marsh v. Titus, 3 Hun, 550; Frazer v. Boss, 66 Ind. 1; Dittmar v. Norman, 118 Mass. 319; Powder Co. v. Burkhardt, 97 U. S. 110. Johnston v. Browne, 37 Ia. 200. Where one is to furnish another a certain line of goods and receive monthly accounts of sales, it is consignment. Walker v. Butterick, 105 Mass. 237; Converse-ville Co. v. Chambersburg Co. 14 Hun, 609; Williams Bros. v. Davis, 47 Ia. 363; Albert v. Lindau, 46 Md. 334; Ex parte White, L. R. 6 Ch. App. 397; In re Linforth, 4 Sawyer, 370. As to sale with right to repurchase, see Slutz v. Desenberg, 28 Ohio St. 371. - K.

For a sale to be valid in law there must be parties, a consideration, and a thing to be sold. All persons may be parties to * a sale, unless they labor under the disabilities or * restraints which have been spoken of in reference to contracts generally.

Of the consideration we have spoken already.

The existence of the thing to be sold, or the subject-matter of the contract, is essential to the validity of the contract (A) If a horse sold be dead before the sale, or merchandise be destroyed by fire, both parties being ignorant thereof, the sale is wholly mous case in 3 Salk. 157, where it is said "Permutalio vicina est emptioni, but exchanges were the original and natural way of commerce precedent to buying, for there was no buying till money was invented; now, in exchanging, both parties are buyers and sellers, and both equally warrant; and this is a natural rather than a civil contract, so by the civil law, upon a bare agreement to exchange, without a delivery on both sides, neither of the parties could have an action upon such agreement, as they may in cases of selling; but if there was a delivery on one side, and not of the other, in such case the deliverer might have an action to recover the thing which he delivered, but he could have no action to enforce the other to deliver what he had agreed to deliver, and which the deliverer was to have in lien of that thing which he delivered to the other." - If goods have been delivered by one party, and the other party agrees to deliver other goods of a similar quality on demand, the transaction is not a sale, but an agreement to exchange. Mitchell v. Gile, 12 N. H. 390. - And proof of an exchange will not support an averment of a sale of goods. Vail v. Strong, 10 Vt. 457. - But in Sheldon v. Cox, 3 B. & C. 420, where A agreed to give a horse, warranted sound, in exchange for a horse of B, and a sum of money; and the horses were exchanged, but B refused to pay the money, pretending that A's horse was unsound; it was held, that it might be recovered on an indebitatus count for horses sold and delivered.

(A) Wood & Foster's case, 1 Leon. 42; Grantham v. Hawley, Hob. 132; Strickland v. Turner. 14 E. L. & E. 471; s. c, 7 Exch. 208; Robinson v. Maedonnel, 5 M. & Sel.*228, where it was held, that an assignment of the freight, earnings, and profits of a ship, does not extend to the profits not in existence, actual or potential, at the time of the assignment. Therefore, where C. assigned by deed to void. If a substantial part of the thing sold be non-existent, it is said,(t) that the buyer has his option to rescind the sale, or take the remainder with a reasonable abatement of the price. But where the parties are equally innocent, we think the meaning and effect of this rule is, that the buyer should have only his choice between enforcing or rescinding the contract; and if he enforces the contract and claims the remainder, he should pay for it the price of the whole. For if the remainder is to be taken at a proportionate reduction, or any reduction, from the whole original price, it should be by a new bargain. Perhaps, however, he may take the remainder, if he will pay for it the original price, with an abatement which can be made exact by a mere numerical proportion; as where the goods were * all of one quality, and a certain part was wholly destroyed, and the residue left wholly uninjured. But if a new price is to be made for the remainder, by a new estimate of its value, it must be certain that this can be done only by mutual consent. (j)

S. the freight, earnings, and profits of the ship W., which ship afterwards in a voyage to the South Seas, obtained a quantity of oil, the produce of whales taken in the said voyage; it was held, that this oil did not pass to S. by the assignment; for the assignor had no property, actual or potential, in the oil, at the time of assignment, and the voyage was not then contemplated. But where the plaintiffs had shipped corn to Loudon in a vessel chartered by them, and sent the bill of lading together with the policy of insurance effected upon the property to the defendants, corn-factors in London, who were to act under a del credere commission, and the defendants on the 15th of May sold the cargo to C., sending him a bought note, stating that he had bought of them 1180 quarters of Salonica Indian corn, of fair average quality when shipped on board the Kezia Page from Salonica, bill of lading dated February 22, at 278. per quarter, free on board, and including freight and insurance to a safe port in the United Kingdom, the vessel calling at Cork or Falmouth for orders, payment to be upon handing shipping documents; it was held (Pollock, C. B., dissenting), that the meaning of the contract was, that the purchaser bought the cargo if it existed at the date of the contract, but that if damaged or lost, he bought the benefit of the insurance, and therefore, although upon the voyage the corn had become fermented and so heated that it was unfit to be carried, and was sold on the 24th of April at Tunis Bay, he was bound to pay the stipulated price in a reasonable time after the delivery of the shipping documents, and that, therefore, the defendants were liable to the plaintiff, under their del credere commission. Couturier v. Elastic, 8 Exch. 40; s. c. sub nom, Hastie Couturier, reversed in 9 Exch. 102; s. c. 5 H. L. Cas. 673. See also Smith v. Myers, L. R. 5 Q. B. 429; I.. R 7 Q. B. 139; Dexter v. Norton, 47 N. Y. 62.