Private sale

“ That of “bargain and sale” was one. Where a man bargained and sold his land to another for pecuniary consideration, which might be merely nominal, and need not necessarily be actually paid, equity held the bargainer to be seised of the land to the use of the bargainee. The Statute of Uses (1535) , by converting the bargainee’s interest into a legal estate, had an effect contrary to the intention of its framers. It made bargain and sale an easy means of secret or private conveyance, a policy to which the law was opposed. ”

“ Its agents conducting the sale could not counteract the effect of such a combination as can the agents of a private corporation, who may look after their interest in all the markets of the world in their own time and in their own way, according to the exigencies of the season and the demand, and who are supplied with money which they can use, without public scandal, in the manipulation of the market. ”

“ As property it is distinguished from actual money chiefly in this respect, that its profitable management sometimes requires that portions of it be appropriated to local objects in the States wherein it may happen to lie, as would be done by any prudent proprietor to enhance the sale value of his private domain. ”

“ In order to prevent wholesale or retail dealers from keeping back goods from sale, they were required to expose over their shop doors a list of all articles that they had in stock, and even private individuals were prohibited from laying in stores. ”

“ Upon the first of them, relating to the premises having been parted with by Clarke to De Grasse, upon a consideration other than cash, we remark that sale is a word of precise legal import, both at law and in equity. It means at all times, a contract between parties, to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold. ”

“ The purchaser draws boundaries, fences himself in, and says, “This is mine; each one by himself, each one for himself.” Here, then, is a piece of land upon which, henceforth, no one has a right to step, save the proprietor and his friends; which can benefit nobody, save the proprietor and his servants. Let these sales multiply, and soon the people—who have been neither able nor willing to sell, and who have received none of the proceeds of the sale—will have nowhere to rest, no place of shelter, no ground to till. ”

“ It is apparent that if, for any cause, any one of these or of similar masses of property, should be brought to the stake, competition at the sales could be maintained only by bidders representing similar companies, or associations of individuals of competent means. Property of this description cannot be divided, or separated into fragments and parcels, so as to bring the sale within the means of individual bidders. ”

“ The stalls, stands, and privileges of all kinds, in said market, to be used for market purposes, when offered at public sale, shall be let to the highest bidder, and there shall be no bidding on the part of said company, directly or indirectly ”

“ It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be presumed to intend to confer on another. This power of sale does not undertake to prescribe the particular manner of making the sale. It is to be at public auction, and 'after having given public notice of such sale by advertisement at least thirty days;' but it assumes that the sale will be conducted as such sales are usually conducted. ”

“ The effect of this novel extension-this distortion, as I view it-of the tying doctrine may be vast and destructive. It is common in our economy for a seller to extend financing to a distributor or franchisee to enable him to purchase and handle the seller's goods at retail, to rent retail facilities, to acquire fixtures or machinery for service to customers in connection with distribution of the seller's goods, or, as here, to prepare the land for and to acquire and erect the seller's houses for sale to the public. ”

“ In this sense, all kinds of real and personal property would be embraced by it, for they all have an estimated value as the subjects of sale. Neither does it necessarily include all forms of investment in which the interest of the owner is expressed in money. ”

“ So a sale upon credit, instead of being for ready money, under a general authority to sell, and in a trade where the usage is to sell for ready money only, creates to contract between the owner and the buyer, and the thing sold may be recovered in an action of trover. ”

“ We are aware of numerous decisions in conflict with this view of the law; but we think the sounder rule, and the one in consonance with the common understanding and usage of commerce, is that the purchaser, at whatever price, takes the benefit of the entire obligation of the maker. Public securities, and those of private corporations, are constantly fluctuating in price in the market, one day being above par and the next below it, and often passing within short periods from one-half of their nominal to their full value. ”

“ It is only when making sales and purchases is his business, his trade, his profession, his means of getting his living, or of making his fortune, that he becomes a broker within the meaning of the statute. Nor is it believed that a sale, by one doing a banking business only, of a security received by him for the repayment of a legitimate loan, would make him a broker, and subject to the tax. ”

“ If an agent to sell effects a sale to himself, under the cover of the name of another person, he becomes, in respect to the property, a trustee for the principal, and at the election of the latter seasonably made, will be compelled to surrender it, or, if he has disposed of it to a bona fide purchaser, to account, not only for its real value, but for any profit realized by him on such resale. ”

“ When property, like the game birds in this case, is reduced to possession it becomes an article of commerce, and may be the subject of sale to the citizens of one state or community, or to the citizens of several. ”

“ If such owner of the improvements on any lot fails within sixty days to purchase and make the first payment on same, such lot, with the improvements thereon, shall be sold at public auction to the highest bidder, under the direction of the aforesaid commission, and the purchaser at such sale shall pay to the owner of the improvements the price for which said lot shall be sold, less sixty-two and one half per cent of said appraised value of the lot and shall pay the sixty-two and one half per cent of said appraised value into the United States Treasury. ”

“ The acquisitions of real property by a trading corporation are commonly made upon a bargain and sale, for a full consideration, and without conditions in the deed; and no conditions are implied in law in reference to such conveyances. The vendor has no interest in the appropriation of the property to any specific object, nor any reversion, where the succession fails. ”

“ A learned author says, 'If any one of the ingredients be wanting, there is no sale.' Atkinson on Sales, 5. Benjamin on Sales, p. 1, note, and p. 2, says, 'To constitute a valid sale, there must be (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer, (4) a price in money, paid or promised.'
How, then, can there be a sale of seven hundred and five packs of iron, unless there be a purchase of it? How can there be a seller, unless there be likewise a purchaser? ”

“ It is enough that the corporation, in complying with the lawful command of the state to part with ownership, is afforded a fair opportunity to realize the value of the land, and that the sale, when required, is to be under conditions reasonably calculated to realize its value at the time of sale. ”

“ A purely personal bond arises thereby between seller and buyer. But complete or executed contract of sale effects a transfer of ownership with all the advantages and risks incident thereto. By an agreement to sell a jus in personam is created; by a sale a jus in rem is transferred. The essence of sale is the transfer of property for a price. If there be no agreement for a price, express or implied, the transaction is gift, not sale, and is regulated by its own peculiar rules and considerations. ”

“ One may observe preliminarily that the Government's remedy for the so-called 'bootstrap' sale-defining sale or exchange so as to require the shifting of some business risks-would accomplish little by way of closing off such sales in the future. ”

“ Note the two selections that follow, in comparison with the definitions [Pg 105] of a responsible statesman and quack novels on pages 87 and 88, and write a definition of any of the following groups, using the method of comparison and contrast.
A sale of personal property is the transfer of its general ownership from one person to another for a price in money. It is almost always the result of a contract between the seller and the buyer. ”

“ The tax usually bears a very slight proportion to the value of the property, and thus a great temptation is presented to parties to exclude competition at the sale, and to prevent the owner from redeeming when the sale is made. ”

“ Consequently the land was filled with agents buying a year’s supply for railroad companies, individuals, manufactories, and corporations, relief associations, towns, and counties—all these to be protected from impressment. Most speculators always had their goods “on the way to market for sale.” ”

“ When a piece of landed property is bought at a forced sale, if those who have lent money on that property see that is likely to be sold so low as not to cover the sum loaned upon it, they have the right, until the expiration of a certain time, to bid it in ”

“ Martin, 2 Wall. 70,-that where one partner is present, in sole charge of the business, while the other is at a distance, in order to sustain a sale of the absent partner's interest, it must be made to appear that the price paid approximates a fair consideration for the thing purchased, and that all the information in the possession of the purchaser necessary to enable the seller to form a sound judgment of the value of what he sells should be communicated by the buyer to him. ”

“ Apparently, to qualify as a sale, a transfer of property for money or the promise of money must be to a financially responsible buyer who undertakes to pay the purchase price other than from the earnings or the assets themselves or there must be a substantial down payment which shifts at least part of the risk to the buyer and furnishes some cushion against loss to the seller. ”

“ By conditioning his sale of one commodity on the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the 'tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the 'tied' product would convince freely choosing buyers to select it over others, anyway. ”

“ The reasoning cited in the earlier part of this paper, to show the uselessness of a mere purchaser or customer, for enriching a nation or an individual, applies only to the case of dealers who have already as much business as their capital admits of, and as rapid a sale for their commodities as is possible. To such dealers an additional purchaser is really of no use; for, if they are sure of selling all their commodities the moment those commodities are on sale, it is of no consequence whether they sell them to one person or to another. ”

“ If the sale has been attended by any irregularity, as if several lots have been sold in bulk where they should have been sold separately, or sold in such manner that their full value could not be realized; if bidders have been kept away; if any undue advantage has been taken to the prejudice of the owner of the property, or he has been lulled into a false security; or if the sale has been collusively or in any other manner conducted for the benefit of the purchaser, and the property has been sold at a greatly inadequate price,-the sale may be set aside, and the owner permitted to redeem. ”

“ Retail dealers, selling the merchandise of others at prices prevailing at particular localities and times shall hand over to the wholesale dealers as much of the sale proceeds and profit as is realised by them. ”

“ It was held, that the owner of the market could not maintain an action against a person for selling marketable goods in the neighborhood, without showing that, at the time of the sale, there was room enough in the market for the seller. ”

“ Merchandise brokers, unless factors, negotiate for the sale of merchandise without having possession or control of it. Like other agents they must serve faithfully and cannot act for both parties, seller and buyer, in the same transaction, without the knowledge and consent of both. In many transactions he does thus represent both by their express or implied authority, and therefore binding both when signing for them.
A real estate broker in the employ of his principal is bound to act for his principal alone, using his utmost good faith in his behalf. ”

“ He owns all the merchandise, and He has opened the market: He invites and advertises the purchasers, fixes the prices, and settles the conditions of sale. And the first condition of sale is that all intending purchasers shall come to Himself immediately for whatever they need. All negotiation here must be held immediately with God. There are no middlemen here. They have their own place in the markets of earth; but there is no room and no need for them here. The producer and the purchaser meet immediately here. ”