24 



CONTRACTS CONCERNING HORSES, ETC. 



Condition as 

 to price ascer- 

 tainable. 



Effect where 

 not ascer- 

 tainable. 



The risk 

 after sale. 



the price, the sale is not perfected, and the property does 

 not pass until that thing is done iy). 



Where, in an agreement of sale, a condition as to the 

 price is annexed, and the fulfilment of it is ascertainable, 

 such condition would appear to be good ; as where the 

 plaintiff purchased a horse for 55/., and the defendant 

 warranted him sound, and agreed to give back 1/. if the 

 horse did not bring the plaintiff 4/. or bl. profit (=). 



But if such condition is not ascertainable, of course it 

 cannot be enforced, and then it becomes an immaterial part 

 of the agreement. Thus, where a horse was sold to the 

 plaintiff for 100 guineas, " and 10/. more if the horse suited 

 him," Lord Tenterden said, "If the buyer had kept the 

 horse, I do not see how the seller could have maintained 

 any action to recover the 10/. The buyer might have said, 

 'the horse does not suit me, but I choose to keep him 

 nevertheless' " {a). So, also, where the plaintiff agreed to 

 purchase a horse for 63/., and "if the horse was lucky, he 

 would give the defendant 5/. more, or the bujdng of another 

 horse," it was held that this part of the agreement was too 

 vague to be legally enforced, and did not amount in point 

 of law to a promise. Thus, Lord Tenterden said, "The 

 remaining part of the consideration, that if the horse 

 proved lucky the plaintifl:' should give 5/. more, or the 

 buying of another horse, is much too loose and vague to be 

 considered in a Court of law. Who is to say under what 

 circumstances a horse shall be said to have proved ' lucky ' ? 

 The price at which the horse sold would not determine it. 

 Suppose a year passed before the advanced price was 

 obtained, it might then still be a question, whether the 

 bargain had been lucky or not. But admitted that this 

 could be ascertained, how could the contract to give 5/., or 

 the buying of another horse, be enforced? It is at the 

 option of the contracting party to do either ; and what 

 could be made of an action for not buying another horse ? 

 The party sued might say he was ready to buy, but too 

 much was asked" (b). 



The rule of law is, that where there is an immediate 

 sale, and nothing remains to be done by the vendor as 

 between him and the vendee, the property in the thing 



(y) See per Parke, J., Dixon v. 

 Yates, 6 B. & Adol. 340 ; Siiddlc v. 

 Green, 27 L. J., Ex. 33 ; Sale of 

 Goods Act, 1893, s. 18, rr. 1, 2. 



(s) JBlyth V. Hampton, 3 Bing. 



472. 



(a) Cave v. Coleman, 3 M. & E,. 3. 



{b) Guthing v. Lynn, 2 B. & Adol. 

 234. 



