(Jorn^U Saw Bt^xml Sibrarg 
 
Cornell University Library 
 KF 810.B16 
 
 A treatise on the law of sales of goods, 
 
 3 1924 018 824 650 
 
It Cornell University 
 Q Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018824650 
 
A TREATISE 
 
 ON 
 
 THE LAW OF SALES 
 
 OF 
 
 AS AFFECTED BY 
 
 . THE STATUTE OF FEAUDS. 
 
 JOHN F.^AKEK, LL.B., 
 
 Of the New York Bar; 
 
 authob op 
 
 "A TREATISE ON CORPORATIONS," ETC. 
 
 CHICAGO: 
 
 CALLAGHAE" AND COMPANY, 
 Law Book Publishers. 
 
 1887. 
 
Copyright, 1887, 
 By JOHN F. BAKER. 
 
 Kf 
 
 8/4 
 
 DAVID ATWOOD, 
 
 Printer and Stereotypbr, 
 madison, wis. 
 
TO 
 THE HONORABLE JOHN F. DILLON, 
 Late Circuit Judge of the United States for the Eighth 
 Judicial Circuit, and formerly Chdjif Justice of 
 
 the Supreme Court of Iowa, 
 In Admiration of his Legal Attainments and Emi- 
 nent Judicial Qualities this work is 
 Most Respectfully Inscribed 
 by 
 THE AUTHOR. 
 
PREFACE. 
 
 From the pen of a writer upon the law of sales as affected by the 
 Statute of Frauds, hardly more, perhaps, should be expected than to 
 present the subject in as clear a light as possible, without embellishment, 
 save by way of illustration. 
 
 Notwithstanding the subject has received some attention at the hands 
 of writers on contracts and sales, yet, as one harpist may draw from the 
 instrument an inspiration different from another, so perchance, one 
 writer may touch a chord of harmony in presenting a legal theme which 
 may satisfy beyond those which have preceded. 
 
 In the preparation of the following treatise the endeavor has been 
 uppermost throughout, to ascertain the governing principles of the law 
 of sales of personal property, as affected by the Statute of Frauds, and 
 to present those principles in such new lights and connections as to 
 render the work available and valuable alike to the active practitioner 
 and student. 
 
 Considerable embarrassment was experienced in reconciling the de- 
 cisions, due principally to the fact that the Statutes of Frauds of the sev- 
 eral states and territories and of England vary in language; but it 
 will be found that the cases have been so grouped and sifted as to illus- 
 trate the distinctive differences. The questions of what contracts come 
 within the operation of the statute ; of acceptance and receipt ; of what 
 constitutes a sufficient note or memorandum ; of signature of the par- 
 ties to be charged; of part payment; of auction sales, and contracts 
 for the sale of crops and growing timber, have all been reviewed and 
 presented, it is believed, with a fair degree of lucidity. 
 
 It will be observed that the plan has been quite uniformly followed of 
 stating the facts of the leading English and American cases, and giving 
 the opinions of the courts, in substance, or at some length, thus show- 
 ing the trend of the decisions, and rendering the work of greater prac- 
 tical utility. Nor have the interesting subjects of the authorship, the 
 history, and the policy of the statute been overlooked. 
 
 Inasmuch as there has never been published a work distinctively 
 upon this branch of the law, if the following treatise, supplying a want 
 long felt, shall light the way and facilitate research into a subject as 
 broad and important as any in the wide domain of jurisprudence, the 
 desire of the author to be useful to his fellow-citizens and to the pro- 
 fession will be gratified and his labors amply rewarded. 
 
 JOHN F. BAKER. 
 
 New Yoke, November, 1887. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 SECTION. 
 
 AtJTHORSHIP AND HISTORY OF THE STATUTE OF FRAUDS 1 
 
 CHAPTER II. 
 
 Of Contracts Within and Contracts Without the Statute 
 of Frauds 24 
 
 CHAPTER III. 
 
 Of Contracts Within the Statute — Rule of Construction 
 in Several States 43 
 
 CHAPTER IV. 
 
 What Contracts are Within the Statute — Rule of Con- 
 struction in England 72 
 
 CHAPTER V. 
 Of Contracts Without the Statute of Frauds 96 
 
 CHAPTER VI. 
 
 Concerning Goods, Wares and Merchandise — Shares of 
 Stock as Goods 136 
 
 CHAPTER VH. 
 Of Growing Crops as Goods and Chattels 153 
 
 CHAPTER VIII. 
 Of Growing Trees and Timber as Goods and Chattels 178 
 
 CHAPTER IX. 
 
 Of Contracts for the Sale of Growing Trees and Timber, 
 when to be Removed by the Vendee 190 
 
Vlll SALES. 
 
 CHAPTER X. 
 
 SECTION. 
 
 Concerning License in the Vendee to Remote Trees and 
 Timber 199 
 
 CHAPTER XI. 
 Concerning Ice as Goods 213 
 
 CHAPTER XII. 
 Concerning Price or Amount ' 217 
 
 CHAPTER XIII. 
 Of Acceptance and Receipt — Acceptance 244 
 
 CHAPTER XIV. 
 Of Acceptance and Receipt — Receipt and Delivery 28 2 
 
 CHAPTER XV. 
 Op Contracts for the Sale of Goods by Sample „. 309 
 
 CHAPTER XVI. 
 Of Symbolical and Constructive Delivery 326 
 
 CHAPTER XVII. 
 Of Conditional Sales 333 
 
 CHAPTER XVIII. 
 Of Receipt of Goods by Carrier 339 
 
 CHAPTER XIX. 
 Of Earnest and Part Payment 359 
 
 CHAPTER XX. 
 Of the Note or Memorandum in Writing 396 
 
 CHAPTER XXI. 
 
 Of the Note or Memorandum in Writing — Contracts by 
 Telegraph 453 
 
 CHAPTER XXII. 
 Concerning the Signature of the Parties to be Charged. .. 464 
 
TABLE OF CONTENTS. ix 
 
 CHAPTER XXIII. 
 
 SECTION. 
 
 Of the Person Lawfully Authorized to Sign the Note or 
 Memorandum 485 
 
 CHAPTER XXTV. 
 Of Sales by Bought and Sold Notes 503 
 
 CHAPTER XXV. 
 Of Auction Sales and Auctioneers » 516 
 
 CHAPTER XXVI. 
 
 Of Auction Sales and Auctioneers — Concerning the Re- 
 traction of a Bid 567 
 
 CHAPTER XXVII. 
 Of Pleading the Statute of Frauds 582 
 
 CHAPTER XXVIII. 
 
 Of Law of Place of the Contract, as Affected by the 
 Statute of Frauds : 603 
 
 APPENDIX I. 
 
 PAGB. 
 
 The Statute of Frauds, as to Sales of Goods, Wares and 
 Merchandise, Chattels and Things in Action, and Personal 
 Property, of the Several States and Territories 453 
 
 APPENDIX II. 
 
 The English Statute of Frauds, § 17, and Lord Tenterden's 
 Act, so far as it Relates to the Statute 29 Car. II., as to 
 Goods, Wares and Merchandise 510 
 
TABLE OF CASES. 
 
 FIGURES REFER TO SECTIONS. 
 
 Abbott v. Gilchrist, 29, 38, 59, 77, 
 
 106, 114. 
 Abbott v. Shepard, 572. 
 Acebel v. Levy, 227, 253, 344, 609. 
 Ackernian v. Ackerman, 133a. 
 Acraman v. Morrice, 269. 
 Adams v. Farr, 337. 
 Adams v. Foley, 327. 
 Adams v. Lindsell, 457, 569. 
 Adams v. O'Connor, 336. 
 Adams v. Patrick, 590. 
 Adlard v. Booth, 100. 
 Albion F. & L. Ins. Co. v. Mills, 
 
 609. 
 Alderton v. Buchoz, 326. 
 Aldrich v. Pyatt, 238. 
 Aldridge v. Johnson, 270. 
 Alexander v. Comber, 21, 120, 365. 
 Alford v. Baker, 390. 
 Allard v. Greasert, 235, 312, 355. 
 Allen v. Aquria, 366. 
 Allen v. Bennett, 410, 418, 447, 450, 
 
 553. 
 Allen v. Jarvis, 41, 112. 
 Allis v. Read, 366, 372. 
 Alna v. Plummer, 548. 
 Alves v. Nodgson, 607. 
 Ames v. Quimby, 232. 
 Amson v. Dreher, 277, 285, 303. 
 Andrews v. Dietrich, 330. 
 Andrews v. Hoover, 126. 
 Appleton v. Bancroft, 267. 
 Argenbright v. Campbell, 466. 
 Armington v. Houston, 337. 
 
 Armstrong v. Turner, 263. 
 Arrington v. Larribee, 209. 
 Artcher v. Zeh, 253, 361, 384. 
 Ash v. Abdy, 8. 
 Ashcom v. Smith, 578. 
 Ashcroft v. Butterworth, 444. 
 Ashcroft v. Morrin, 223, 449. 
 Astey v. Emery, 21, 46, 77, 83, 85. 
 Atherton v. Newhall, 268, 340, 368. 
 Atkinson v. Bell, 74, 78, 93, 112. 
 Attorney-General v. Belle Isle Ice 
 
 Company, 213. 
 Atwater v. Hough, 41. 
 Atwell v. Miller, 429, 444. 
 Atwood v. Cobb, 403, 410, 425. 
 Atwood v. Lucas, 248, 311. 
 Audenried v. Randall, 326. 
 Austin v. Boyd, 585. 
 Austin v. Sawyer, 165, 167. 
 Avery v. Stewart, 299. 
 Avery v. Wilson, 297. 
 
 B. 
 
 Babcock v. Meek, 586, 601. 
 Babcock v. Utter, 180, 208. 
 Bach v. Owen, 361. 
 Bacon v. Eccles, 246, 259, 282, 344, 
 
 357, 411. 
 Bailey v. Clason, 490. 
 Bailey v. Epperly, 283. 
 Bailey v. Ogden, 299, 306, 502. 
 Bailey v. Schell, 215. 
 Bailey v. Sweeting, 399, 428. 
 Baily v. Hudson River R. R. Co. 
 
 278. 
 
xu 
 
 SALES. 
 
 Baker v. Bouroicault, 105. 
 
 Baker v. Dening, 480. 
 
 Baker v. Farmbrough, 382. 
 
 Baker v. Henderson, 164 
 
 Baker v. Jameson. 573. 
 
 Baldey v. Parker, 11, 21, 235, 236, 
 
 271, 285, 344, 355, 541. 
 Baldwin v. Williams, 137, 147, 150, 
 
 152. 
 Baltzen v. Nicolay, 147, 488. 
 Bamber v. Savage, 581. 
 Banton v. Shorey, 180, 212. 
 Banker v. Hoyt, 512. 
 Bank of Lansingburg v. Crary, 173, 
 
 192, 196. 
 Bank of Br. N. A. v. Simpson, 419. 
 Banks v. Harris Manufacturing 
 
 Co., 438. 
 Baptist Church v. Insurance Co., 
 
 293. 
 Barclay v. Bates, 581. 
 Barkalow v. Pfeiffer, 247, 283. 
 Barkley v. Rensselaer, etc., Rail- 
 road Co., 280, 341. 
 Barlow v. Ocean Ins. Co., 168. 
 Barnes v. Jevons, 261. 
 Barnett v. Nye, 103. 
 Barney v. Brown, 332, 341. 
 Barstow v. Gray, 403, 422. 
 Barry v. Combe, 477, 480. 
 Barrett v. Goddard, 264. 
 Bartlett v. Brunell, 495. 
 Bass v. Velturn, 232. 
 Basford v. Pearson, 4, 419. 
 Bates v. Chesebro, 376. 
 Bates v. Coster, 68. 
 Batters v. Sellers, 466, 491, 540. 
 Baylis v. Lundy, 282a. 
 Beach v. Rantan & Delaware Bay 
 
 R. R. Co., 454. 
 Beaumont v. Bungeri, 263. 
 Bean v. Burbank, 403. 
 Beckley v. Keenan, 480. 
 Beckwith v. Talbot, 405, 426, 446, 
 
 473, 478. 
 Beers v. Crowell, 147. 
 Beirne v. Dord, 258. 
 
 Bellusv. Keyser, 405. 
 Bement v. Smith, 113. 
 Bennet v. Brumfith, 480. 
 Bennett v. Hall. 487. 
 Bennett v. Hul), 15, 28, 83. 
 Bent v. Cobb, 485, 494, 534, 548. 
 Benton v. Pratt, 135. 
 Bensley v. Bignold, 89 
 Bernal v. Hovious, 156, 162. 
 Bethel Steam Mill Co. v. Brown, 
 
 327. 
 Bexwell v. Christie, 558. 
 Bigler v. Hall, 26. 
 Bill v. Bament, 307, 332, 399, 465. 
 Billin v. Henkel, 345. 
 Bird v. Boulton, 531. 
 Bird v. Muhlenberg, 67, 69. 
 Bird v. Monroe, 403, 425, 438. 
 Bishop v. Bishop, 158. 
 Bissell v. Balcom, 262, 264, 363, 377. 
 Blackford v. Preston, 557. 
 Blagden v. Bradbear, 18, 518. 
 Blake v. Nicholson, 91. 
 Blanchard v. Page, 348. 
 Blanchard v. Trim, 301. 
 Bleeker v. Franklin, 465, 573. 
 Blenkinsop v. Clayton, 361. 
 Blood v. Hardy, 494. 
 Bloom v. Welsh, 156. 
 Blossom v. Milwaukee & Chicago 
 
 R. R. Co., 572. 
 Boardman v. Cutter, 137, 144, 150. 
 Boardman v. Spooner, 286, 411, 465, 
 
 480. 
 Bodkin v. Merit, 583. 
 Bog Lead Mining Co. v. Montague, 
 
 276, 316. 
 Bold v. Raymer, 505 
 Bommer v. Am. Spiral Spring Butt 
 
 Hinge Mfg. Co., 587. 
 Bordwell v. O'Keefe, 293. 
 Borrowscale v. Bosworth, 256, 310. 
 Bossinger v. Spangler, 329. 
 Bostwick v. Leach, 156. 
 Bours v. Webster, 162. 
 Bowers v. Anderson, 252, 264. 
 Bowes v. Pontifix, 282a. 
 
TABLE OF CASES. 
 
 X1U 
 
 Bowlby v. Bell, 14, 139. 
 Bowman v. Conn, 115. 
 Bowser v. Cessna, 578. 
 Boyce v. Washburn, 186. 
 Boyd v. Eaton, 107, 477. 
 Boyden v. Crane, 4, 419. 
 Boynton v. Veazie, 332. 
 Bozza v. Rowe, 573. 
 Brabin v. Hyde, 285, 363, 385. 
 Brace v. Yale, 216. 
 Bradford v. Spiker, 403. 
 Bradley v. Holdsworth, 139. 
 Brady v. Harrahy, 384. 
 Bramley v. Alt, 558. 
 Brandt v. Focht, 274, 284, 311. 
 Bray v. Kittell, 494. 
 Breckinridge v. McAfee, 563. 
 Brent v. Green, 548. 
 Brewster v. Taylor, 247, 274, 309. 
 Bricker v. Hughes, 165. 
 ■ Briggs v. Munchon, 414, 531. 
 Briggs v. Partridge, -481. 
 Britain v. McKay, 166. 
 Brock v. Jones, 573. 
 Brock v. Knower, 311. 
 Bronson v. Wiman, 58a, 187. 
 Brooks v. Minturn, 405. 
 Brown v. Allen, 33, 397. 
 Brown v. Bellows, 233. 
 Brown v. Cheesney, 516. 
 Brown v. Clark, 27. 
 Brown v. Cole, 232. 
 Brown v. George, 118. 
 Brown v. Hall, 237, 262, 423. 
 Brown v. Sanborn, 63, 72, 405, 416, 
 
 436. 
 Brown v. Whipple, 425, 433, 443. 
 Browne v. Hare, 270. 
 Browning v. Magill, 563. 
 Brownson v. Chapman, 147: 
 Bruce v. Bishop, 572. 
 Buck v. Pickwell, 170, 198, 210. 
 Buckeridge v. Ingram, 10. 
 Buckingham v. Osborne, 261. 
 Buckley v. Beardsle, 440. 
 Buckmaster v. Harrop, 518. 
 Buffington v. Curtis, 164. 
 
 Bulger v. Boche, 607. 
 Bullard v. Waite, 263, 267. 
 Bullock v. Stcherge, 245, 275, 347. 
 Bundy v. Johnson, 463. 
 Bunting v. Beideman, 594. 
 Burges v. Wickham, 411. 
 Burke v. Haley, 448, 548. 
 Burke v. Partridge, 147. 
 Burnham v. Dunn, 168. 
 Burrell v. Root, 476. 
 Burrill v. Tuessell, 8. 
 Burski v. Paige, 129. 
 Burton v. Scherpf, 211. 
 Bush v. Holmes, 248, 309. 
 Bushell v. Annaman, 317. 
 Bushell v. Wheeler, 258, 332, 344. 
 Busk v. Davis, 230. 
 Butler v. Thomson, 485, 506, 508, 
 
 536. 
 Buxton v. Bedal, 80. 
 Buxton v. Rust, 432. 
 Bryant v. Crosby, 170, 176. 
 Bryant v. Whitcher, 563. 
 Byassee v. Reese, 180. 
 Byers v. Franklin Coal Co., 215. 
 Byles v. Collier, 418. 
 Byrne v. Van Tienhoven, 549. 
 
 c. 
 
 Cabot v. Haskins, 422, 470. 
 Cahill v. Bigelow, 583. 
 Cain v. Leslie, 308. 
 Calcutta Co. v. De Mattos, 270, 334. 
 Caldwell v. Green, 412. 
 Calkin v. Falke, 425. 
 Calkins v. Lock wood, 330. 
 Cameron v. Fowler, 197. 
 Campbell v. Campbell, 374. 
 Campbell v. Clark, 528. 
 Campbell v. Mersey Docks Com- 
 pany, 269. 
 Carman v. Smick, 120. 
 Carpenter v. Clark, 288. 
 Carpenter v. Graham, 275. 
 Carr v. Duval, 572. 
 Carrington v. Roots, 156. 
 Carter v. Harlan, 208. 
 
XIV 
 
 SALES. 
 
 Carter v. Touissaint, 285, 332. 
 
 Carter v. Willard, 267. 
 
 Cartwright v. Phoenix, 326. 
 
 Carver v. Lane, 326. 
 
 Cary v. Hotaling, 563. 
 
 Case v. St. Catharines Opera House 
 Co., 132. 
 
 Cason v. Cheely, 25, 65, 76, 168. 
 
 Castle v. Sworder, 246, 263, 317, 
 353. 
 
 Catlin v. Tobias, 297. 
 
 Catling v. King, 543. 
 
 Caton v. Caton, 477. 
 
 Caulkins v. Hellman, 247, 258, 278, 
 292, 312, 326a, 341, 357. 
 
 Cayuga County Nat. Bank v. Dan- 
 iels, 343. 
 
 Chaffin v. Doud, 256. 
 
 Chamberlain v. Smith, 181. 
 
 Chamberlin v. Dow, 357. 
 
 Chambers County v. Clews, 600. 
 
 Champin y. Plummer, 410, 418, 
 447, 450, 456, 502. 
 
 Champlin v. Layton, 566. 
 
 Cbamplin v. Parish, 475. 
 
 Chanter v. Dickinson, 143, 148. 
 
 Chaplin v. Rogers, 11, 21, 261, 306, 
 330, 602. 
 
 Chapman v. Langdon, 411. 
 
 Chapman v. Partridge, 546. 
 
 Chapman v. Searle, 253, 262. 
 
 Chapman v. Shepard, 298. 
 
 Chappel v. Marvin, 330. 
 
 Chase v. Willard, 332. 
 
 Chater v. Beckett, 129. 
 
 Chinnock v. Sainsberry, 572. 
 
 Chicago Dock Co. v. Kenzie, 583. 
 
 Chichester v. Cobb, 477. , 
 
 Christie v. Burnett, 414, 420. 
 
 Church v. Brown, 225, 433. 
 
 Church v. Wells, 525. 
 
 Churchill v. Wilkins, 223. 
 
 Citizens' Bk. v. Nantucket Steam- 
 boat Co., 137. 
 
 City Bank v. Eowe, W. & O. R. 
 Co., 343. 
 
 Claflin v. Carpenter, 183, 206, 212. 
 
 Claflin v. Rosenberg, 329. 
 Clark v. Draper, 326. 
 Clark v. Labreche, 262, 271. 
 Clark v. Terry, 596. 
 Clark v. Wright, 247. 
 Clark v. Woodruff, 481. 
 Clark v. Nichols, 33, 64, 189. 
 Clarke v. Westrope, 241. 
 Clarkson v. Carter, 366. 
 Clarkson v. Noble, 247, 537, 546. 
 Clason v. Bailey, 440, 467, 483. 
 Clay v. Yates, 32, 73, 77, 78, 88, 89, 90. 
 Clayton v. Andrews, 15, 69, 80, 82, 
 
 83, 86. 
 Cleaves v. Foss, 522, 575. 
 Clegg v. Levy, 607. 
 Cloud v. Monrnan, 298. 
 Clute v. Steele, 288. 
 Coate v. Terry, 523. 
 Coats v. Chaplin, 344. 
 Cobb v. Arundell, 353. 
 Cocks v. Izard, 554. 
 Cochrane v. Willis, 231. 
 Coddington v. Goddard, 425, 446, 
 
 466, 471, 497, 504. 
 Codran v. Toher, 302. 
 Coffman v. Hampton, 235, 541. 
 Colgreve v. Solomon, 193. 
 Cole v. Swanston, 512. 
 Cole v. Brown, 475, 570. 
 Coles v. Clark, 299. 
 Coleman v. Eyre, 114, 128, 147. 
 Coleman v. Gibson, 219, 282, 282a. 
 Collins v. Blantern, 23. 
 Colt v. Netterville, 140. 
 Colton v. Lee, 450. 
 Colvin v. Williams, 144, 146. 
 Combs v. Bateman, 390. 
 Commonwealth v. Jeffries, 456. 
 Connor v. Giles, 337. 
 Connor v. Hingtgen, 598. 
 Conway v. Edwards, 263, 288. 
 Cook v. Bradley, 151. 
 Cook v. Mann, 286, 329. 
 Cook v. New York Central R. R. 
 
 Co., 513. 
 Cook v. Oxley, 569. 
 
TABLE OF CASES. 
 
 XV 
 
 Cook v. Stearns, 200, 205. 
 
 Cooke v. Millard, 43, 47, 48, 50, 52, 
 
 56, 269, 303. 
 Cooke v. Reddelien, 529. 
 Cooke v. Tombs, 129. 
 Cool v. Peters Box & Lumber Co., 
 
 207. 
 Coombs v. Bristol & Ex. R. R. Co., 
 
 317, 344, 349. 
 Coombs v. Gordon, 563. 
 Coon v. Ridden, 427, 465. 
 Cooper v. Carlisle, 133a. 
 Cooper v. Elston, 15, 28, 65, 69, 77, 
 
 83, 248, 310. 
 Corbitt v. Salem Gaslight Co., 243. 
 Cormick v. Drummett, 583. 
 Cornell v. Clark, 284, 307. 
 Corning v. Colt, 257. 
 Cotterill v. Stevens. 285, 329. 
 Courtright v. Stewart, 122. 
 Cox v. Baker, 525. 
 Cox v. Painter, 435. 
 Cozine v. Graham, 586, 592. 
 Craig v. Godfrey, 528, 531. 
 Crawford v. Morrell, 129. 
 Crawford v. Smith, 130. 
 Creager v. Link, 572. 
 Crockett v. Scribner, 29, 33, 59, 114. 
 Crofoot v. Bennett, 328. 
 Crookshank v. Burrell, 15, 48, 74, 
 
 103, 106, 487. 
 Croppe v. Cook, 446. 
 Crosby v. Wadsworth, 156, 171, 192. 
 Cross v. Eglin, 223. 
 Cross v. O'Donnell, 274, 340, 353, 355. 
 Crotenkemper v. Achtemeyer, 549. 
 Crowder v. Austin, 557. 
 Crull v. Dodson, 141. 
 Cuddee v. Butter, 140. 
 Cumming v. Boebuck, 503. 
 Cummings v. Arnold, 301, 405, 4tfl. 
 Cummings v. Barrett, 214. 
 Cummings v. Dennett, 38, 77, 242, 
 
 403, 440. 
 Cummings v. Stone, 591. 
 Cunliffe y. Harrison, 282a. 
 Cunningham v. Ashbrook, 232, 368. 
 
 Currie v. Anderson, 282a, 317, 344. 
 Curtis v. Pugh, 253, 282a. 
 Cusack v. Bobinson, 258, 272, 316, 
 
 353. 
 Gushing v. Breed, 298. 
 Cushing v. Warrick, 27. 
 Cutler v. Pope, 174, 170. 
 
 D. 
 
 Dabovich v. Ermeric, 582. 
 
 Dacosta v. Davis, 606, 
 
 Dallard v. Potts, 499. 
 
 Dalton v. Solomon, 339. 
 
 Dame v. Baldwin, 563. 
 
 Damon v. Osborn, 328, 373. 
 
 Danforth v. Walker, 248, 311. 
 
 Daniel v. Harlcy, 581. 
 
 Daniel v. Wood, 525. 
 
 Daniels v. Bailey, 195. 
 
 Dant v. Fielder, 415. 
 
 Davis v. Eastman, 309. 
 
 Davis v. Emery, 212. 
 
 Davis v. Moore, 404. 
 
 Davis v. McFnrlane, 163. 
 
 Davis v. Bobertson, 519. 
 
 Davis v. Rowell, 520. 
 
 Davis v. Shields, 468, 474, 475. 
 
 Davis v. Spencer. 386. 
 
 Dawes v. Beck, 343, 344. 
 
 Day v. New York Cent. R. B. Co., 
 
 4, 419. 
 Day v. Pool, 368. 
 Day v. Wells, 573. 
 Deal v. Maxwell, 00, 109, 110. 
 De Birt v. Thompson, 471. 
 Dedrich v. Leonard, 250. 
 Dehority v. Baxson, 247, 287. 
 Delaney v. Root, 156. 
 Delaware & Hudson Canal Co. v. 
 
 Penn. Coal Co., 232. 
 Den v. Zellers, 562, 564. 
 Denmead v. Glass, 247, 344. 
 Dennison v. Carnahan, 263, 501. 
 Denny v. Williams, 256, 326, 326a. 
 Denton v. Great Northern R'y Co., 
 
 562. 
 
XVI 
 
 SALES. 
 
 Derew v. Daverill, 527. 
 
 Detroit, Hills. & Ind. E. E. "< 
 
 Forbes, 118. 
 Dewey v. "Williams, 285. 
 Dickenson v. Dickenson, 338. 
 Dickenson v. Silwot, 513. 
 Dickson v. Lambert, 593. 
 Dilke v. Andrews, 341. 
 Dilton v. Anderson, 439. 
 Dilworth v. Bostwick, 454, 495. 
 Dimrnock v. Hallock, 556. 
 Dimmock v. Lockwood, 131. 
 Dixon v. Yates, 17, 283. 
 Doak v. Burbaker, 288. 
 Dobell v. Hutchinson, 429. 
 Dodsley v. Varley, 272, 332. 
 Doe v. Harris, 10. 
 Doggett v. Emerson, 566. 
 Dole v. Stimpson, 274. 
 Donaldson v. Newman, 584. 
 Donegani v. Molinelli, 90. 
 Donnell v. Hearn, 96, 110, 113. 
 Donovan v. Willson, 58, 58a, 77, 97. 
 Dooley v. Erlbert, 289, 363. 
 
 Doolin v. Ward, 554. 
 
 Doty v. Martin, 119. 
 
 Doughty v. Manhattan Brass Co., 
 429. 
 
 Douglass v. Garrett, 329. 
 
 Douglass v. Spears, 423a, 447. 
 
 Dow v. Worthen, 383. 
 
 Dows v. Montgomery, 258, 314. 
 
 Downer v. Thompson, 281, 330. 
 
 Downs v. Eoss, 29, 45, 48, 64, 74, 
 75, 76, 103, 467. 
 
 Doyle v. Dixon, 143. 
 
 Doyle v. Lasher, 332. 
 
 Drake v. Wells, 208. . 
 
 Draper v. Jones, 230. 
 
 Draper v. Pattina, 480. 
 
 Drefolt v. Gorman, 63. 
 
 Dressel v. Jordan, 410, 422, 423a. 
 
 Drury v. Young, 424, 465. 477, 
 
 Dudley v. Abner, 336. 
 
 Dudley v. Jamaica P. Aqueduct 
 215. 
 
 Duffy v. O'Donovan, 588. 
 
 Duncan v. Blair, 107. 
 Duncroft v. Albrecht, 148. 
 Dung v. Parker, 134. 
 Dunlop v. Lambert, 348. 
 Dunning v. Eoberts, 454. 
 Dunne v. Ferguson, 154, 180. 
 Duplex Safety Boiler Co. v. 
 
 McGuinness, 257, 285. 
 Durkee v. Vermont Central E. E., 
 
 454. 
 Durrell v. Evans, 472. 
 Dyas v. Stafford, 553. 
 Dyer v. Libby, 256, 307. 
 Dykers & Alstyne v. Townsend, 
 
 435, 500, 523. 
 
 E. 
 
 Easterlin v. Eylander, 232. 
 
 Eden v. Blake, 443, 
 
 Easton v. Worthington, 563. 
 
 Ecroyd v. Davis, 577, 581. 
 
 Edin v. Dudfleld, 285, 327. 
 
 Edgerton v. Hodge, 362. 
 
 Edgerton v. Huff, 214. 
 
 Edwards v. Grand Trunk E'y Co., 
 
 38, 96, 170, 181, 247, 286, 344. 
 Egerton v. Matthews, 26, 242, 447, 
 450, 469. 
 
 Eggleston v. N. Y., etc., Eailroad 
 Co., 208. 
 
 Ehle v. Judson, 197. 
 
 Eichelberger v. McCauley, 41, 74, 
 82, 87, 116. 
 
 Eiseley v. Malchow, 583. 
 
 Elliott v. Dean, 425, 428. 
 
 Elliott v. Jenness, 582. 
 
 Elliott v. Peterson, 176. 
 
 Ellis v. Bray,' 408, 414. 
 
 Ellis v. Clark, 212. 
 
 Ellis v. Hunt, 330. 
 
 Ellis v. Smith, 479. 
 
 Ellison v. Brigham, 183, 203. 
 
 Ellison v. Jackson, 242. 
 
 Elmendorf v. Taylor, 608. 
 
 Elmore v. Kingscote, 223. 
 
 Elmore v. Stone, 21, 257. 
 
TABLE OF CASES. 
 
 XV11 
 
 Elphick v. Barnes, 337. 
 
 Ely v. Ormsby, 262, 267, 362, 384 
 
 Emmersonv. Heelis, 158, 170, 235, 
 
 236, 522, 541. 550, 569, 581. 
 Ennis v. Waller, 518. 
 Erskine v. Plummer, 181, 205. 
 Estey v. Cooke, 288. 
 Evans v. Hnrdy, 180. 
 Evans v. Harris, 262. 
 Evans v. Roberts, 111, 156, 160, 169, 
 
 173. 
 Evans v. Wills, 547. 
 Everett v. Parks, 353. 
 Ewing v. Bennet, 27. 
 Eyston v. Studcl, 27. 
 Ex parte Safford — Re Downing, 
 
 249. 
 Ex parte Parker, 275. 
 
 F. 
 
 Fagan v. Faulkner, 229. 
 
 Farebrother v. Simmons, 494, 535. 
 
 Farina v. Home, 341, 344. 
 
 Farmer v. Gray, 26Sa. 
 
 Farmer v. Home, 332. 
 
 Farmer v. Robinson, 573. 
 
 Farr v. Dutcher, 133a. 
 
 Farren v. O'Hara, 29, 58. 
 
 Farwell v. Tillson, 582. 
 
 Fawkes v. Lamb, 411. 
 
 Fawcett v. Glossop, 247. 
 
 Fay v. Wheeler, 146, 338. 
 
 Fenley v. Stewart, 436. 
 
 Fenn v. Harrison, 488. 
 
 Fernier v. Home. 
 
 Fessenden v. Mussey, 465, 525, 531, 
 
 581. 
 Fickett v. Swift, 96. 
 Fine v. Hornsby, 137, 145. 
 Finney v. Apgar, 37, 96, 248, 274. 
 First Baptist Church of Ithaca v. 
 
 Bigelow, 117, 524. 
 First National Bank of Springfield 
 
 v. Dana, 513. 
 Fish v. Hubbard's Adm'r, 459. 
 Fisher v. Forbes, 158. 
 
 Fisher v. Hersey, 561, 570. 
 Fisher v. Leitzer, 572. 
 Fiske v. McGregory, 536, 539. 
 Fitzpatrick v. Woodruff, 147. 
 Fitzsimmons v. Woodruff, 61, 109, 
 
 368. 
 Flagg v. Mann, 217, 586. 
 Flanders v. Maynard, 375. 
 Flanagan v. Demorest, 297. 
 Fluckner v. United States Bank, 366. 
 Fletcher v. Ingram, 282. 
 Flint v. Corbitt, 00. 
 Flintoft v. Elmore, 530, 535, 548. 
 Foley v. Mason, 415. 
 Forsyth v. Jervis, 384. 
 Foster v. Leeper, 126. 
 Foster v. Rockwell, 353. 
 Foster v. Ropes, 335, 418. 
 Foster v. Steele, 441. 
 Fowler v. Hollins, 494. 
 Fox, In re, 139. 
 Fragano v. Long, 270. 
 Francois v. Ocks, 123. 
 Frank v. Harrington, 28, 159, 161. 
 Frazee v. Mofflt, 215. 
 Freeman v. Underwood, 212. 
 Freeport v. Bartol, 117, 525. 
 Friend v. Pettingill, 114. 
 French v. Freeman, 248, 263. 
 Frost v. Hill, 535. 
 Frostburg Mining Co. v. New Eng. 
 
 Glass Co., 327, 353. 
 Fuller v. Abrahams, 556. 
 Fuller v. Bean, 222, 232, 336. 
 Fuller v. Reed, 107. 
 Fuller v. Rice, 591. 
 Futches v. Futches, 584. 
 
 G. 
 
 Gadsden v. Lauer, 146. 
 Gale v. Wells, 513. 
 Gallager v. Brunei, 135. 
 Galloway v. Week, 275. 
 Galton v. Enniss, 555. 
 Gano v. The Chicago & Northwest- 
 ern Railroad Co., 252. 
 
xvm 
 
 SALES. 
 
 Garbutt v. Watson, 15, 32, 41, 46, 
 74, 77, 83, 86, 103. 
 
 Gardet v. Belknap, 254, 284. 
 
 Gardner v. Grout, 311. 
 
 Gardner v. Hazelton, 411. 
 
 Gardner v. Joy, 35, 53, 78, 189. 
 
 Gardner v. Morse, 554. 
 
 Garfield v. Paris, 245, 256, 311. 
 
 Gartrell v. Stafford, 410. 
 
 Gary v. Hull, 131. 
 
 Gaslin v. Pinney, 261, 282a, 287. 
 
 Gates v. Shatts, 168. 
 
 Gault v. Brown, 235. 
 
 Gaylord Mfg. Co. v. Alen, 368. 
 
 Geary v. Physic, 480. 
 
 Georgia Refining Co. v. The Au- 
 gusta Oil Co. , 126. 
 
 Gerard v. Taggart, 539. 
 
 Getchell v. Jewett, 403, 410, 423a, 
 425. 
 
 Gibbs v. Benjamin, 248, 286, 336, 
 341. 
 
 Gibbs v. Usher, 137. 
 
 Gibson v. Holland, 399, 403, 424. 
 
 Giles v. Simonds, 181. 
 
 Gill v. Bicknell, 575. 
 
 Gill v. Hewitt, 531. 
 
 Gillespie v. Edmonston, 457. 
 
 Gilliat v. Gilliat, 556. 
 
 Gillighan v. Boardman, 403. 
 
 Gillitt v. Hill, 269. 
 
 Gillitt v. Maynard, 131. 
 
 Oilman v. Hill, 38, 49, 235, 252, 285, 
 315, 384. 
 
 Gilmour v. Supple, 334. 
 
 Givins v. Calder, 596. 
 
 Glenn v. Rogers, 583. 
 
 Goddard v. Binney, 29, 33, 39, 48, 
 59, 77, 96, 105, 114, 279. 
 
 Goddard v. Demeritt, 247, 344. 
 
 Godeffroy v. Caldwell, 114. 
 
 Goelet v. Cowdrey, 530, 581. 
 
 Gooch v. Holmes, 137, 147. 
 
 Goodall v. Skelton, 361. 
 
 Gooding v. Riley, 179. 
 
 Goodwin v. Francis, 454, 463, 491. 
 
 Goodyear v. Walliston, 163. 
 
 Gordon v. Simonton, 282. 
 
 Gordon v. Sims, 548. 
 
 Gorhani v. Fisher, 29, 185, 315. 
 
 Gorm v. Aflats, 496. 
 
 Goshen v. Kern, 516. 
 
 Gould v. Town of Oriconta, 370. 
 
 Governor, etc., v. Patch, 439. 
 
 Gowing v. Knowles, 572. 
 
 Graff v. Foster, 584. 
 
 Grafton v. Armitage, 88, 92. 
 
 Grafton v. Cummins, 410, 446. 
 
 Grand Chute v. Winegar, 600. 
 
 Grant v. Fletcher, 503, 513. 
 
 Grant v. Naylor, 506. 
 
 Graves v. Weld, 156, 157. 
 
 Gray v. Baker, 117. 
 
 Gray v. Davis, 257, 262, 314, 326, 330. 
 
 Gray v. Harper, 415. 
 
 Gray v. Sullivan, 288. 
 
 Gray v. Veers, 560. 
 
 Green v. Armstrong, 173, 192, 204. 
 
 Green v. Haythorn, 311. 
 
 Green v. Merriam, 263, 267. 
 
 Green v. Richards, 374, 582. 
 
 Greene v. Bateman, 231, 579. 
 
 Greene v. Lewis, 400. 
 
 Greeley-Burnham Grocer Co. v. 
 
 Capen, 509. 
 Greely v. Stilson, 205, 206. 
 Grey v. Gary, 354, 
 Grice v. Hendrick, 556. 
 Griffith v. Fowler, 563. 
 Grimes v. Van Vechten, 350, 353, 
 
 357. 
 Groat v. Gill, 362. 
 
 Groom v. Affialo, 504, 513. 
 
 Groot v. Story, 419, 443. 
 
 Groover, Stubbs & Co. v. Warfield, 
 
 126. 
 Grover v. Cameron, 281. 
 Groves v. Buck, 15, 69, 74, 80, 83. 
 Gunnis v. Erhart, 566. 
 Gurney v. Atlantic, etc., Railway 
 
 Co., 258. 
 Gurney v. Collins, 405. 
 Gwathney v. Cason, 411, 581. 
 Gyger's Estate, 27. 
 
 
TABLE OF CASES. 
 
 XIX 
 
 II. 
 
 Hakes v. Hotchkiss, 413, 
 Hall v. Soule, 405. 
 Hallen v. Bunder, 111. 
 Hallenbeck v. Cochran, 250. 
 Hallock v. Commercial Ins. Co. ,455, 
 Halterline v. Rice, 25.'. 
 Hamilton v. Calhoun, 303. 
 Hanson v. Armita^e, 252, 238, 332 
 
 344, 350, 449. 
 Hanson v. Meyer, 299. 
 Hanson v. Eoter, 291, 330. 
 Hardell v. McClure, 23, 64, 74, 75. 
 
 291. 
 Harman v. Reeve, 14, 219. 
 Harnsou v. Elvin, 430. 
 Harper v. Miller, 592, 594. 
 Harris v. Frink, 180, 211. 
 Harris v. Nickerson, 565. 
 Hart v. Bush, 341, 344. 
 Hart v. Hammett, 415. 
 Hart v. Sattley, 268, 344. 
 Harteau v. Gardner, 294. 
 Harvey v. Harris, 581. 
 Harvey v. Stevens, 494, 548. 
 Haskell v. Ayers, 208. 
 Hatch v. Lincoln, 332. 
 Hatton v. Clave, 2. 
 Hausman v. Nye, 258, 2S6, 309, 349, 
 
 541. 
 Hawes v. Foster, 504. 
 Hawkins v. Baker, 487, 573. 
 Hawkins \: Chace, 466,471, 472, 494. 
 Hawley v. Keeler, 252, 261, 362, 
 
 370, 389. 
 Hayden v. Deniets, 326, 332. 
 Hayden v. Steadman, 586, 591. 
 Haynes v. Cutchford, 554. 
 Haynes v. Nice, 107, 476. 
 Hazard v. Day, 454, 456. 
 Hazel v. Dunham, 557. 
 Head v. Diggon, 574. 
 Hedges v. Strong, 536. 
 Heermance v. Taylor, 253 
 Heideman v. Wolf enstein, 409, 509, 
 531. 
 
 Henderson v. Cotter, 411, 443. 
 
 Henderson v. State, 494. 
 
 Henkel v. Pape, 454. 
 
 Henline v. Hall, 130. 
 
 Heritage v. Hall, 314. 
 
 Herring v. Hoppock, 337. 
 
 Heseltine v. Siggers, 139. 
 
 Hewes v. Jordan, 248, 253, 258, 271, 
 285, 309. 
 
 Heyman v. Neale, 504. 573. 
 
 Heyworth v. Knight, 446. 
 
 Hibblewhite v. McMorine, 70, 139. 
 
 Hicks v. Hawkins, 488. 
 
 Hicks v. Minturn, 516, 527. 
 
 Hicks v. Whitmore, 518, 521, 526, 
 528, 531. 
 
 Hickok v. Buell, 275. 
 
 Hight v. Ripley, 29, 40, 53, 58a. 
 
 Higdon v. Thomas, 465. 
 
 Higgins v. Chessman, 418. 
 
 Higgins v. Kusterer, 216. 
 
 Higgins v. Murray, 28, 98, 99, 113. 
 
 Higgins v. Senior, 405. 435. 
 
 Hill v. McDonald, 239, 282. 
 
 Hill v. Miller, 481. 
 
 Hill v. Spear, 608. 
 
 Hillebrands v. Nebbelink, 193. 
 
 Hinckley v. Arey, 494. 
 
 Hinde v. Whitehouse, 18, 252, 311, 
 49G, 504, 518, 618, 526. 
 
 Hoadley v. McLaine, 219, 224, 415. 
 Hobbs v. Wether wax, 107, 129, 180. 
 Hodgson v. Le Bret, 236, 541. 
 Hoffman v. Anthony, 549. 
 Hoffman v. Carow. 533. 
 Hoffman v. King, 275, 282, 299. 
 Hogar v. King. 338. 
 Hoit v. Stratton Mills, 179. 
 Holden v. Jackson. 564. 
 Hollenbecker v. Napier, £64. 
 Hollingsworth v. Napier, 314. 
 Holmes v. Haskins, 344. 
 Holmes v. Holmes, 555. 
 Home v. Hayward, 359. 
 Hook v. Turner, 554, 584. 
 Hooker v. Knab, 62, 248, 344, 390. 
 Hopton v. McCarthy, 258, 280. 
 
XX 
 
 SALES. 
 
 Horr v. Barkie, 298. 
 
 Horlon v. McCarty, 494, 517, 530, 
 
 548, 581. 
 Hosaok v. Weaver, 563. 
 Hotchkiss v. Ladd, 589, 590. 
 Houghtaling v. Ball, 60G. 
 Houston v. Laffee, 209. 
 Howard v. Borden, 256, 326a, 344. 
 Howard v. Castle, 557. 
 Howard v. Daly, 457. 
 Howe v. Chesley, 590. 
 Howe v. Dewing, 581. 
 Howe v. Hayward, 363, 381. 
 Howe v. Palmer, 21, 72, 257. 
 Howe v. Smith, 361. 
 Howell v. Maas, 508. 
 Hubbert v. Borden, 405. 
 Hubert v. Moreau, 480. 
 Hubert v. Treherne, 472. 
 Hudnut v. Weir, 593. 
 Hudson v. Weir, 147. 
 Hulse v. Young, 539. 
 Humble v. Mitchell, 14, 139. 
 Hunn v. Bowne, 306. 
 Hunt v. Gregg, 581. 
 Hunt v. Heoht, 258, 317, 332, 344. 
 Hunter v. Giddings, 404, 425. 
 Hunter v. Randall, 582. 
 Hunter v. Wetsell, 363, 366, 370, 371. 
 Hunter v. Wight, 353. 
 Huntley v. Huntley, 113. 
 Huntington v. Knox, 405. 
 Hui ff v. Hires, 298. 
 Hurlburt v. Bogardus, 288. 
 Hutchins v. Gilchrist, 336. 
 Hutton v. Moore, 232. 
 
 Ide v. Stanton, 404, 405, 423a. 
 Innes v. Purcell, 27. 
 Ireland v. Johnson, 391. 
 Irvine v. Stone, 107. 
 Isaacs v. Hardy, 88. 
 Isherwood v. Whitmore, 299. 
 Ivins v. Ackerson, 111. 
 Ivory v. Murphey, 422, 423a. 
 
 Jackson v. Covert, 15, 83. 
 Jackson v. Hubbard, 261, 363. 
 Jackson v. Lowe, 425, 426. 
 Jackson v. Morter, 556. 
 Jackson v. Tupper, 363, 366, 370. 
 Jacob v. Kirke, 418, 477. 
 James v. Catherwood, 609. 
 James v. Muir, 222, 226, 405. 
 James v. Patten, 429, 468, 475. 
 James v. Williams, 439. 
 Jamison v. Simon, 275. 
 Janney v. Sleeper, 302. 
 Janvrin v. Maxwell, 263, 264. 
 Jeffcott v. North Br. Oil Co., 446. 
 Jellison v. Jordan, 4, 419. 
 Jenkins v. Hogg, 554. 
 Jenkins v. Frink, 554. 
 Jennings v. Flanagan, 362. 
 Jenness v. Mt. Hope Iron Co., 405, 
 
 434, 572. 
 Jennings v. Webster, 253. 
 Jenness v. Wendell, 235, 236, 541. 
 Jewett v. Warren, 254, 327, 332. 
 Johnson v. Campbell, 312, 
 Johnson v. Cuttle, 268, 340, 353. 
 Johnson v. Dodson, 253, 353, 424, 
 
 447, 473. 
 Johnson v. Latimer, 596. 
 Johnson & Miller v. Buck, 429, 
 
 485, 536. 
 Johnson v. Roberts, 574. 
 Johnson v. Wilkinson, 200, 211. 
 Jones v. Flint, 160, 192. 
 Jones v. Isaacs, 430. 
 Jones v. Nanney, 549, 550, 570. 
 Jones v. Nellis, 563. 
 Joy v. Sears, 164. 
 Joy v. Schoss, 108. 
 Joyce v. Adams, 362. 
 Justice v. Lang, 410, 440, 442, 507. 
 
 K. 
 
 Kealy v. Tenant, 256, 326a. 
 Kearney v. Taylor, 554. 
 Keatts v. Rector, 308. 
 
TABLE OF OASES. 
 
 XXI 
 
 Kibble v. Gough, 292, 319, 320, 321, 
 
 324. 
 Keeler v. Vandevere, 237. 
 Kein v. Tupper, 268, 270. 
 Keiwert v. Meyer, 245, 248, 344, 
 
 349. 
 Kellogg v. Wetherhead, 60, 64, 258. 
 Kelly v. Kelly, 405. 
 Kernberly v. Patchin, 298. 
 Kennedy v. Panama Mail Co., 566. 
 Kent v. Huskinson, 323, 342. 
 Kenworthy v. Scofield, 18, 569. 
 Kelsey v. Henry, 114. 
 Kerhof v. Atlas Paper Company, 
 
 290, 366. 
 Kertz v. Fleisher, 133. 
 Kdlmore v. Howlett, 182. 
 Kimberly v. Patchen, 268. 
 King v. Brower, 4. 
 King v. Brown, 131, 
 King & Clopton v. Jarman, 331. 
 King v. Enterprise Ins. Co. 594. 
 King v. Upton, 403. 
 King v. Wood, 458. 
 Kinghorne v. Montreal Tel. Co., 
 
 454, 457. 
 Kingsley v. Holbrook, 170, 180, 210. 
 Kinney v. Showdy, 562, 564. 
 Kirby v. Johnson, 248, 262, 305. 
 Kling v. Fries, 351. 
 Klinitz v. Surry, 311. 
 Knight v. Barber, 139, 150, 500. 
 Knight v. Crockford, 469, 472. 
 Knight v. Mann, 248, 268, 312, 341. 
 Knox v. King, 518. 
 Kountz v. Kirkpatrick, 233. 
 Kraft v. Greathouse, 587. 
 Kramer v. McCaughey, 129. 
 Kriete v. Myer, 413. 
 Krolm v. Bantz, 390, 592, 593. 
 Krom v. Levy, 297. 
 Krulder v. Ellison, 278, 349. 
 Kuhns v. Gates, 247. 
 
 Labor v. Koflin, 513. 
 Laing v. Fidgeon, 223. 
 
 Lake Shore & Mich. S. R'y Co. v. 
 
 Roach, 27. 
 Lamb v. Crafts, 32, 168, 189. 
 Lamborn v. Watson, 10. 
 Lamprey v. Sargent, 328. 
 Lance v. Cowan, 563. 
 Landis v. Morrissey, 597. 
 Lane v. Melville, 125. 
 Lansing v. Turner, 264, 306. 
 Lash v. Parlin, 414, 487, 509. 
 Latham v. Atwood, 158. 
 Latham v. Morrow, 557. 
 Lauz v. McLaughlin, 437. 
 Lawrence v. Allen, 215. 
 Lawrence v. Burnham, 288. 
 Lawrence v. Chase, 286, 403. 
 Lawrence v. Smith, 192, 197. 
 Lawrenson v. Butler, 422, 450, 503. 
 Leavitt v. Watson, 518. 
 Lee v. Griffin, 32, 49, 73, 78, 88, 90. 
 Lee v. Hillis, 425, 448. 
 Lee v. Lee, 557. 
 Lee v. M'Leod, 205. 
 Lee v. Mahoney, 412, 426. 
 Lees v. Whitcomb, 439. 
 Leisherness v. Berry, 327. 
 Lemonier v. Charlebois, 251. 
 Lemaine v. Stanley, 479. 
 Leonard v. Davis, 326. 
 Leonard v. New York, etc., Tel. 
 
 Company, 454. 
 Lerned v. Johns, 405. 
 Lerned v. Wannemaker, 425. 
 Lessee of Wright v. Deklyne, 551. 
 Levins v. Rovegus, 256. 
 Levy v. Merrill, 403. 
 Lillywhite v. Devereaux, 285, 341. 
 Lincoln v. The Erie Preserving Co., 
 
 456. 
 Lingham v. Eggleston, 279, 334, 417- 
 Linn Boyd Tobacco Warehouse Co. 
 
 v. Terrill, 548. 
 Linsley v. Tibbals, 431. 
 Little Rock & Fort Smith Railway 
 
 Co. v. Page, 331. 
 Lloyd v. Wright, 258, 286, 345. 
 Locke v. Williamson, 246. 
 
XX11 
 
 SALES. 
 
 Lockwood v. Barnes, 293. 
 Loomis v. Newall, ,129. 
 Lorman v. Benson, 214. 
 Louisville Prize Mining Co. v. 
 
 Scudder, 591. 
 Low v. Andrews, 32. 
 Low v. Hall, 513. 
 Lowery v. MehafEy, 423a. 
 Lownsdale v. Hunsaker, 289. 
 Ludwig v. Fuller, 330. 
 Ludewig v. Pariser, 27. 
 Lunn v. Hoag, 329. 
 Lyle v. Shinnebarger, 265, 408. 
 
 M. 
 
 Maberly v. Sheppard, 332. 
 Macdonald v. Henderson, 552. 
 Maclean v. Dunn, 504. 
 Macomber v. Parker, 17, 417. 
 Mactier v. Frith, 52, 461. 
 McBlain v. Cross, 463. 
 MoBride v. Silverthorne, 412. 
 McCarthy v. Nash, 261, 287. 
 McCaul v. Straus, 425, 428, 434. 
 McComb v. Wright, 467, 524, 581. 
 McCombs v. McKennan, 126. 
 McConnell v. Hughes, 232, 239. 
 McCormick v. Drummett, 583. 
 McCraw v. Welch, 286. 
 McCrea v. Marsh, 211. 
 McCullock v. Ins. Co. 457. 
 McDonald v. Berwick, 439. 
 McDougald v. Banks, 596. 
 McDowel v. Chambers, 480. 
 McElroy v. Buck, 405, 411. 
 McElroy v. Seery, 406, 491. 
 McGivenv. Fleming, 476. 
 McGregor v. Brown, 194, 210. 
 Mcllvane v. Harris, 164. 
 McKnight v. Dunlap, 261.. 276, 293, 
 
 374. 
 McLaughlin v. Peatti, 262. 
 McLea v. Robinson, 232. 
 McLeod v. Jones, 199, 211. 
 McMartin v. Moore, 332. 
 McMillen v. Terrill, 410. 
 McMullen v. Helberg, 504, 529. 
 
 McWhorter v. McMahon, 494. 
 
 Maddison v. Alderson, 399. 
 
 Maddock v. Stock, 218. 
 
 Magruder v. Gage, 340. 
 
 Malone v. Plato, 232. 
 
 Manser v. Buck, 549. 
 
 Mann v. Whitbeck, 314. 
 
 Marble v. Moore, 418. 
 
 Marie v. Garrison, 400, 604, 606. 
 
 Markham v. Jandon, 248. 
 
 Marshall v. Ferguson, 164, 180, 183, 
 
 252. 
 Marshall v. Green, 9.1, 191, 203, 317. 
 Marshall v. Peters, 214. 
 Marsh v. Hyde, 281, 404. 
 Marsh v. Rouse, 248, 253, 263, 368. 
 Marston v. Baldwin. 337. 
 
 Marston v. Sweet, 588. 
 
 Martin v. Blanchett, 591. 
 
 Martin v. Dana, 578. 
 
 Martineau v. Kitching, 239. 
 
 Marvin v. Wallis, 246, 267, 332. 
 
 Mason v. Brunskill, 443. 
 
 Mason v. Decker, 147, 423a. 
 
 Mason v. Phelps, 232. 
 
 Mason v. H. Whitbeck Company, 
 259, 285, 303. 
 
 Massell v. Cooke, 141. 
 
 Mattice v. Allen, 362. 386. 
 
 Matthiessen & Weichers R. Co. v. 
 McMahon, Adni'r, 248, 286, 368, 
 384. 
 
 Matthison v. Wescott, 122. 
 
 Mattison v. Schofield, 52. 
 
 Matlock v. Fry, 166. 
 
 Maxwell v. Brown, 271, 345. 
 
 Maxwell v. Day, 390. 
 
 May v. Ward, 443. 
 
 Mayer v. Child, 146, 150. 
 
 Mayfield v. Wadsley, 129. 
 
 Maynard v. Anderson, 337. 
 
 Mead v. Case, 11, 37, 54, 56, 57, 60, 
 102. 
 
 Mead v. DeGolyer, 297. 
 
 Means v. Williams, 248, 263. 
 
 Mechanics', etc., Bank v. Farmers', 
 etc., Bank, 326. 
 
TABLE OF CASES. 
 
 XXI 11 
 
 Meincke v. Falk, 87, 39, 48, 64, 96, 
 
 108, 291. 
 Megaw v. Molloy, 504. 
 Menzies v. Dodd, 253, 329. 
 Merchant v. Chapman, 339, 353. 
 Meredith v. Meigh, 344, 353. 
 Merrill v. Western Union Tel. Co., 
 
 457. 
 Merrill v. "Wilson, 503.. 
 Merritt v. Clason, 15, 470, 483. 
 Mesnard v. Aldridge, 549, 566. 
 Messer v. Woodman, 235, 236. 
 Mews v. Carr, 522, 528, 530, 570. 
 Middlesex Co. v. Osgood, 302, 403. 
 Millar t. Fitzgibbons, 445. 
 Miller v. Baker, 202. 
 Miller v. Bascom, 337. 
 Miller v. State, 166, 170. 
 Miller v. Upton, 599. 
 Mills v. Hunt, 235, 542. 
 Mills v. Kuykendall, 599. 
 Mill River Mfg. Co. v. Smith, 214, 
 
 216. 
 Minturn v. Allen, 516. 
 Minturn v. Main, 516. 
 Metts v. Bright, 531. 
 Mixer v. Howarth, 31, 32, 39, 77, 
 
 105, 106, 189. 
 Mollett v. Wackerbarth, 513. 
 Moncrieff v. Goldsborough, 557. 
 Montgomery v. Edwards. 402, 590. 
 Montgomery v. Hunt, 327. 
 Moore v. Campbell, 505. 
 Moore v. Mountcastle, 414, 509. 
 Morehead v. Hunt, 557. 
 Moreland v. Myall, 166. 
 Morgan v. Kidder, 299. 
 Morin v. Martz, 410, 437. ~ 
 Morrill v. Cooper, 368. 
 Morse v. Sherman, 26, 288. 
 Morton v. Dean, 531, 536, 548, 576. 
 Morton v. Tibbett, 258, 317, 318, 
 
 319, 321, 332. 
 Morris v. Blair, 411. 
 Morrison v. Tonner, 465. 
 Morrow v. Eeed, 120, 291. 
 Mortimer v. Bell, 556, 559. 
 
 Moss v. Cohen, 537. 
 Moss v. Green, 414. 
 Muchlow v. Mangles, 80. 
 Muckey v. Howenstine, 106. 
 Mueller v. Guye, 254, 327. 
 Mullaly v. Holden, 582, 584. 
 Mumford v. Whiting, 200. 
 Munn v. Berger, 251. 
 Murfree v. Carmack, 531. 
 Murphy v. Helmrich, 492. 
 Myer v. Whitaker, 214. 
 
 K 
 
 Nassau G. L. Co. v. Brooklyn, 215. 
 National Bank . of Metropolis v. 
 
 Sprague, 555. 560. 
 National Fire Ins. Co. v. Loomis, 
 
 556. 
 Neelson v. Sanborne, 404. 
 Newby v. Rogers, 410, 423a. 
 Newberry v. Wall, 225, 429, 498, 
 
 499. 
 Newcomb v. Clark, 405, 436. 
 Newhall v. Langdon, 298. 
 Newell v. Rndl'ord, 420. 
 Newman v. Morris, 74, 81. 
 Newton v. Bronson, 485, 494. 
 Nichols v. Allen, 63, 440. 
 Nichols v. Johnson, 405. 
 Nichols v. Mitchell, 62. 
 Nicholls v. Plume, 282a. 
 Nicholson v. Bower, 840. 
 Noakes v. Morey, 436, 492. 
 Noble v. Ward, 10. 
 Noe v. Gregory, 488. 
 Nomington v. Cook, 297. 
 Norman v. Phillips, 258, 259, 292, 
 
 332, 340. 
 Norris v. Blair, 448, 518, 536, 539. 
 North v. Forrest, 145, 151. 
 Nbyes v. Humphreys, 107. 
 North v. Mendel, 404, 462. 
 Northern v. The State, 165. 
 Nutting v. Dickenson, 4, 232. 
 Nuttleton v. 'Sikes, 201. 
 
XXIV 
 
 SALES. 
 
 O. 
 
 Oakman v. Bodgers, 425, 444. 
 
 O'Brien v. Barker, 283a. 
 
 O'Donnell v. Brehen, 180, 194, 248. 
 
 O'Donnell v. Leeman, 530. 
 
 Ogden v. Stewart, 451. 
 
 Old Colony E. K. Co. v. Evans, 
 423a. 
 
 Oliphant v. Baker, 2G7. 
 
 Olmstead v. Niles, 192. 
 
 Olson v. Mayer, 1G4, 240. 
 
 O'Neil v. Grain, 411, 414, 509. 
 
 O'Neill v. James, 52. 
 
 O'Neil v. N. Y. & Silver Peak Min- 
 ing Co., 36, 60. 
 
 O'Neill v. N. Y. Cent. & H. E. E. 
 E. Co., 356. 
 
 Orcutt v. Nelson, 339, 353. 
 
 Organ v. Stewart, 370. 
 
 Orman v. Iiagar, 127. 
 
 Ormond v. Anderson, 422, 450. 
 
 Ormsby v. Lewis, 403. 
 
 Osborne v. Endicott, 597. 
 
 Osborn v. Marquand, 314. 
 
 Outwater v. Dodge, 15, 314, 330. 
 
 Owens v. Field, 208. 
 
 Owens v. Lewis, 181, 207. 
 
 Packard v. Dunsmore, 330. 
 
 Packard v. Eichardson, 242, 403. 
 
 Page v. Carpenter, 328. 
 
 Page v. Monks, 107. 
 
 Page v. Morgan, 292, 319, 320. 
 
 Paige v. Clough, 338. 
 
 Paige v. O'Neil, 90. 
 
 Paige v. Ott, 296. 
 
 Paine v. Fulton, 379, 384. 
 
 Paine v. Woods, 214. 
 
 Palmer v. Marquette & P. E. Mill 
 
 Co., 442. 
 Parkhurst v. Van Cortlandt, 457. 
 Parker v. Jervis, 326, 330. 
 Parker v. Staniland, 154, 156, 170, 
 
 171, 191. 
 
 Parker v. Schenck, 43, 96, 106, 187. 
 Parker v. Steward, 393. 
 Parker v. Wallis, 332, 413. 
 Parker v. Way, 168. 
 Parker v. Wilson, 470, 474. 
 Parsons v. Loucks, 28, 43, 49, 51, 
 
 101, 103, 109. 
 Parsons v. Phelan, 555. 
 Parsons v. Smith, 181, 212. 
 Parsons v. Woodward, 37, 191. 
 Partridge v. Wilsey, 41, 397, 601. 
 Passaic Manuf. Co. v. Hoffman, 
 
 22, 52, 398, 445. 
 Pattison v. Mills, 600. 
 Payne v. Cave, 524, 549, 570. 
 Pawelski v. Hargreaves, 70. 
 Pawle v. Gunn, 148. 
 Peabody v. Speyers, 150, 152. 
 Peacock v. Purvis, 156. 
 Pecker v. Kennison, 107, 476. 
 Peich v. Dickson, 459. 
 Peirce v. Cort, 428. 
 Peirce v. Corf, 553. 
 Peirce v. Lyman, 331. 
 Penniman v. Hartshorn, 327, 409, 
 
 473. 
 People v. Knickerbocker Ice Com- 
 pany, 214, 215. 
 People v. Lord, 556. 
 People v. New York Floating Dry 
 
 Dock Co., 215. 
 People v. N. Y. & Manhattan Beach 
 
 E'y Co., 27. 
 People v. White, 573. 
 Peters v. Ballastier, 344. 
 Petrie v. Dorwin, 276. 
 Pettitt v. Mitchell, 529. 
 Petty v. Evans, 199. 
 Phelps v. Hunnewell, 267. 
 Pheps v. Cutler, 344. 
 Philbrook v. Belknap, 403. 
 Phillips v. Adams, 583. 
 Phillimore v. Berry, 546. 
 Phillips v. Bistolli, 231, 579. 
 Phillips v. Moore, 52. 
 Phillips v. Ocmulgee Mills, 256, 425, 
 
 499. 
 
TABLE OF CASES. 
 
 XXV 
 
 Phippen v. Stickney, 557. 
 
 Phipps v. McFarlane, 29, GO, 72, 96, 
 103, 121. 
 
 Picket v. Swift, 38, 40. 
 
 Pickering v. Appleby, 140. 
 
 Pierce v. Bouton, 96, 110. 
 
 Pierce v. Gibson, 360. 
 
 Pierson v. Crooks, 258. 
 
 Pierrepont v. Barnard, 192, 206. 
 
 Pike v. Balch, 548, 578. 
 
 Pike v. Fay, 415. 
 
 Pike v. Vaughn, 120, 291, 379. 
 
 Pike v. Wieting, 307. 
 
 Pitcher v. Hennessy, 419, 443. 
 
 Pillans v. Van Mierop, 12. 
 
 Pinckney v. Hagadon, 547, 570. 
 
 Pindall v. Trevor, 308. 
 
 Pinkham v. Mattox, 247, 256, 263, 
 309, 327, 499. 
 
 Pitkin v. Noyes, 38, 40, 48, 96, 
 115, 168, 192. 
 
 Poor v. Oakman, 212. 
 
 Porter v. Rose, 602. 
 
 Porter v. Wormer, 147, 58C. 
 
 Portman v. Willis, 137. 
 
 Potter v. Duffield, 543. 
 
 Powell v. Jessop, 139. 
 
 Potts v. Whitehead, 572. 
 
 Powers v. Barber. 304. 
 
 Pratt v. Ogden, £09. 
 
 Pratt v. Pick, 290. 
 
 Pratt v. Turner, 494. 
 
 Pray v. Mitchell, 146. 149. 
 
 Prescott v. Locke, 29, 38, 96, 247, 
 271, 285. 
 
 Price v. Dunn, 538, 573. 
 
 Price v. Weaver, 582. 
 
 Printing and Numerical Register- 
 ing Co. v. Sampson, 19. 
 
 Printup v. Barrett, 596. 
 
 Proctor v. Jones, 11, 257, 307. 
 
 Propert v. Parker, 470. 
 
 Prosser v. Henderson, 457. 
 
 Puckett v. Read, 331. 
 
 Pullian v. Wright, 286. 
 
 Purner v. Piercy, 170, 176. 
 
 Putnam v. Tillotson, 339. , 
 
 Putney v. Day, 183, 194, 402. 
 Pym v. Campbell, 437. 
 
 Q. 
 
 Quick v. Wheeler, 439. 
 Quinlan v. Raymond, 588. 
 Quintard v. Bacon, 284. 
 
 E. 
 
 Rafferty v. Lou gee, 523. 
 
 Rand v. Mather, 107, 477. 
 
 Rann v. Hughes, 8, 13. 
 
 Rapelye v. Mackie, 330. 
 
 Rapelye v. Smith, 230. 
 
 Rapploye v. Adie, 262, 307. 
 
 Rasch v. Bissell, 125. 
 
 Raynes v. Crowder, 556. 
 
 Raynor v. Linthorne, 494. 
 
 Re Carew's Estate, 554. 
 
 Reed v. Latham, 431, 572. 
 
 Remick v. Sandford, 247, 281, 310. 
 
 Rennys v. Proctor. 531. 
 
 Rentch v. Long, 60, 87, 116. 
 
 Reshton v. Whatmore, 552. 
 
 Reuss v. Picksley, 423. 
 
 Rex v. The Inhabitants of Hern- 
 don, etc., 208. 
 
 Rex v. Marsh, 557. 
 
 Rhea v. Puyear, 308. 
 
 Rhodes v. Castner, 412. 
 
 Rhodes v. Ibberton, 549. 
 
 Rice v. Manley, 134. 
 
 Rice v. Peet, 129. 
 
 Richards v. Cunningham, 583. 
 
 Richards v. Porter, 429. 
 
 Richardson v. Richardson, 199. 
 
 Richardson v. Squires, 383. 
 
 Rickard v. Moore, 282a, 320, 321, 
 324. 
 
 Ricker v. Cross, 327. 
 
 Rickey v. Tenbroeck, 368. 
 
 Riddle v. Varnum, 230. 
 
 Ridgway v. Bowman, 443. 
 
 Ridgway v. Ingram, 414, 425, 448, 
 
XXVI 
 
 SALES. 
 
 Ridgway v. Wharton. 413. 
 Riggs v. Magruder. 137, 147. 
 Right v. Price, 10. 
 Riley v. Farnsworth, 411. 
 Rindskopf v. De Ruyter, 214, 351. 
 Rinquist v. Ditchell, 488. 
 Robbins v. Deverill, 595. 
 Robinson v. Rutter, 539. 
 Robinson v. Uhl. 083. 
 Roberts v. Mazeppa Mill Co., 302. 
 Robertson v. Vaughn, 25. 
 Rodgers v. Phillips, 248, 271, 278, 
 
 284, 340, 343, 344, 345, 355. 
 Rod well v. Phillips, 172. 
 ' Roethke v. Brewing Co., 351. 
 Rogers v. Huie, 563. 
 Rogers v. Jones, 247. 
 Rogers v. Stevenson, 29, 399. 
 Rogers v. Wheeler, 356. 
 Rohde v. Thwaites, 270, 279. 
 Roland v. Gundy, 563. 
 Rommel v. Wingate, 454. 
 Rondeau v. Wyatt, 15, 28, 74, 76, 
 
 77, 80, 82, 83, 84, 586. 
 Roots v. Lord Dormer, 235, 541. 
 Ropes v. Lune. 418. 
 Rosepaugh v. Vredenburgh, 4, 419. 
 Ross v. Welch, 166, 170, 344. 
 Rossiter v. Miller, 543. 
 Rourke v. Baliens, 337. 
 Routledge v. Grant, 574. 
 Rowe v. Osborne, 503. 
 Rucks v, Barbour. 573. 
 Rucker v. Cammeyer, 495. 
 Rugg v. Minett, 235, 335, 541. 
 Russell v. Myers, 193, 403. 
 Russell v. O'Brien, 333. 
 Russel v. Carswell, 488. 
 •Ryan v. Dorr, 133, 308. 
 
 Sadler v. Whitmore, 247. 
 
 Safiford v. Annis, 164. 
 
 Safford v. McDonough, 248, 263, 
 
 341. 
 Sainsbury v. Matthews, 170. 
 
 [ Saint Vincent Orphan Asylum, v. 
 
 Troy, 208. 
 Sale v. Darragh, 510. 
 Sale v. Lambert, 543. 
 Salkirk v. Cobb, 494. 
 Salmon Falls Manufacturing Co. v. 
 
 Goddard, 413, 415, 459, 465, 477, 
 
 506, 523. 
 Saltus v. Everett, 563. 
 Samuels v. Gorham, 281. 
 Sanborn v. Flagler, 477, 480, 523. 
 Sari v. Boudellon, 473. 
 Saul v. His Creditors, 608. 
 Saunderson v. Jackson, 373, 425, 
 
 450, 465, 477, 479. 
 Sawyer v. Nichols, 256. 
 Schneider v. Norris, 465, 473, 478, 
 
 479. 
 Schriefer v. Wood, 214, 215. 
 Schultz v. Bradley, 248, 416, 451. 
 Scofield v. Hernandez, 513. 
 Scott v. Bush, o90. 
 Scott v. Eastern Counties Railway 
 
 Company, 14, 219, 252, 287. 
 Scotten v. Sutter, 279. 
 Scovill v. Boxall, 194, 210. 
 Scovell v. Griffiths, 459. 
 Sears v. Brink, 12. 
 Secret v. Twilty, 573. 
 Selby v. Selby, 471. 
 Servier v. Walker, 537. 
 Sewall v. Fitch, 10, 25, 28, 43, 56, 
 
 83, 97, 102. 487. 
 Sewell v. Eaton, ISO. 
 Seymour v. Davis, CO, 109, 261, 511. 
 Shadlow v. Cotterell, 553. 
 Sharp v. Carroll, 392. 
 Shaw v. Finney, 494. 
 Shellits v. Reineking, 608. 
 Shepherd v. Pressey, 51, 253, 263, 
 
 271, 272, 285. 
 Sherman v. Scott, 133. 
 Sherry v. Picken, 165. 
 Sherwood v. Saxon, 5S4. 
 Shiel v. Colonial Bank, 544. 
 Shindler v. Houston, 22, 254, 270 
 
 283, 285, 330, 378. 
 
TABLE OF CASES. 
 
 XXVU 
 
 Shnrtliff v. Willard, 333. 
 
 Shute v. Door, 129. 
 
 Siev wright v. Archibald, 446, 504, 
 
 507, 508. 
 Silver v. Bowne, 280, 352. 
 Simmons v. Swift, 17, 336. 
 Simmons Hardware Company v. 
 
 Mullen, 350. 
 Simmons v. More, 488. 
 Simon v. Metevier, 18, 497, 518, 
 
 540. 
 Simonton v. Minneapolis Bank, 
 
 572. 
 Simons v. Steele, 433. 
 Simpson v. Krumdick, 248, 318. 
 Simpson v. Pettus, 583. 
 Singstack v. Harding, 524. 
 Slater v. Maxwell, 554. 
 Sloan Sawmill and Lumber Co. v. 
 
 Guttshall, 34, 295, 600. 
 Slocum v. Seymour, 181, 194. 
 Small v. Quincy, 419, 425. 
 Smith v. Arnold, 425, 485, 494, 530, 
 
 532, 534, 548, 570. 
 Smith v. Auerbach, 599. 
 Smith v. Benson, 181. 
 Smith v. Bouck, 2S5. 
 Smith v. Brady, 297. 
 Smith v. Bryan, 164, 188, 203. 
 Smith v. Clarke, 561. 
 Smith v. Colby, 430. 
 Smith v. Easton, 455, 45G. 
 Smith v. Ellis, 549. 
 Smith v. Fisher, 29, 185. 
 Smith v. Gouly, 572. 
 Smith v. Gowdy, 456. 
 Smith v. Hudson, 246, 282a; 325. 
 Smith v. Ide, 440. 
 Smith v. Jones, 410, 430, 462. 
 Smith v. McVeigh, 133a. 
 Smith v. Milliken, 285. 
 Smith v. New York Cent. Railroad 
 
 Co., 28, 49, 60. 
 Smith v. Richards, 566. 
 Smith v. Shell, 408, 423. 
 Smith v. Smith, 129. 
 Smith v. Stroller, 259, 313. 
 
 Smith v. Surman, 46, 74, 78, 84, 94, 
 
 184. 332. 
 Snider v. Thrall, 300. 
 Snow v. Warner, 341. 
 Solomon v. Webster, 572. 
 Solomons \ . Chesley, 327. 
 Somerby v. Buntin, 141, 143, 150. 
 Southern Life Insurance & Trust 
 
 Co. v. Cole, 146. 
 Sourwine v. Truscott, 572. 
 Sousely v. Burns, 302. 
 Sovereign v. Ortman, 405. 
 Spalding v. Archibald, 206. 
 Spencer v. Babcock, 4.">9. 
 Spencer v. Cone, 100, 189. 
 Spencer v. Hale, 282a, 314, 340, 
 
 341, 344. 
 Spooner v. Holmes, 563. 
 Sprague v. Blake, 261. 
 Springer v. Kleinsorge, 458, 584. 
 Spurrier v. Fitzgerald, 586. 
 Spyer v. Fisher, 495. 
 Stagg v. Compton, 429. 
 Stammers v. O'Donohue, 545. 
 Stansell v. Leavitt, 129, 189. 
 Starman v. Brandt, 535. 
 State v. Keeler, 549. 
 State v. Litchfield, 456. 
 State v. Potlmeyer, 214, 216. 
 Slater v. Smith. 410. 
 Stead v. Danber, 393. 
 Steele v. Ellmaker, 557, 558. 
 Steel v. Fife, 404. 
 Steel Works v. Dewey, 298. 
 Stephens v. Santer, 47, 187. 
 Stephenson v. Arnold, 133a. 
 Stevens v. Hall, 451. 
 Stevens v. Stewart, 162, 256. 
 Stevenson v. Irwin, 96. 
 Stewart v. Doughty, 156. 
 Steward v. Scudder, 415. 
 Stinson v. Clark, 330. 
 Stoddard v. Vestry, 540. 
 Stokes v. Moore, 470. 
 Stone v. Browning, 225, 247, 256, 
 
 258, 283, 309. 
 Stone v. Dennison, 4. 
 
XXV111 
 
 SALES. 
 
 Stone v. Marsh, 5G3. 
 
 Stone v. Peacock, 410. 
 
 Stone v. Perry, 336. 
 
 Stone v. Sanborn, 456. 
 
 Stoops v. Smith, 419, 422, 443. 
 
 Stotsbury v. Vail, 133a. 
 
 Storm v. Manchaug, 214. 
 
 Strong v. Dodds, 309, 317, 339, 
 
 344, 353, 590. 
 Stubbs v. Lund. 341. 
 Suman v. Springate, 594. 
 Sutherland v. Carter, 118. 
 Sweet v. Lee, 430, 477. 
 Sweet v. Shumway, 415. 
 Sweetland v. Barrett, 582, 599. 
 Swegart v. McGee, 294. 
 Switzer v. Skiles, 554. 
 Symons v. James, 549. 
 
 Taintor v. Prendergast, 494. 
 
 Tallman v. Franklin, 425, 446, 570. 
 
 Tanner v. Scovill, 312. 
 
 Tarleton v. Vietes, 598. 
 
 Tayloe v. Riggs, 419, 443. 
 
 Taylor v. Merchants' Ins. Co., 457. 
 
 Taylor v. Mueller, 312, 340, 350. 
 
 Taylor v. Patterson, 243. 
 
 Taylor v. Steamboat Robert Camp- 
 bell, 454. 
 
 Taylor v. Waters, 200, 210. 
 
 Tague v. Fowler, 308. 
 
 Teal v. Auty, 161, 194, 210. 
 
 Teed v. Teed, 384. 
 
 Tempest v. Fitzgerald, 21, 254, 266, 
 285, 332. 
 
 Tempest v. Kilner, 14. 
 
 Terrell v. Frazier, -205. 
 
 Thayer v. Rock, 129. 
 
 Thompson v. Alger, 373, 374, 378. 
 
 Thompson v. Davenport, 436. 
 
 Thompson v. Davies, 554. 
 
 Thompson v. Ketchum, 608. 
 
 Thompson v. Meinck, 293, 409, 425. 
 
 Thompson v. Fargo, 278. 
 
 Thomas v. Lumley, 513. 
 
 Thomas v. Williams, 129. 
 
 Thornborow v. Whitacre, 394 
 
 Thorndike v. Locke, 147. 
 
 Thornett v. Haines, 562. 
 
 Thornton v. Kempster, 423, 505. 
 
 Thornton v. Meux, 504. 
 
 Thrall v. Lathrop, 299. 
 
 Thurston v. Thornton, 572. 
 
 Tinkler v. Swaynie, 594. 
 
 Tipton v. Feitner, 238. 
 
 Tisdale v. Harris, 144, 149, 150, 399. 
 
 Tompkins v. Haas, 235. 
 
 Topping v. Root, 602. 
 
 Torrencev. Bolton, 566. 
 
 Torret v. Crupps, 478. 
 
 Torry v. Holmes, 503. 
 
 Tower v. Tudhope. 256, 499. 
 
 To-wne v. Collins, 563. 
 
 Towers v. Osborne, 15, 66, 69, 74, 
 
 80. 
 Towle v. Leavitt, 562, 570. 
 Townsend v. Corning, 547. 
 Townsend v. Hargraves, 10, 248, 
 
 268, 293, 368, 419. 
 Townsend v. Hubbard, 547. 
 Townsend v. Van Tassel, 548. 
 Towsley v. Moore, 4. 
 Treadwell v. Reynolds, 282a, 
 Trevor v. Wood, 457, 460. 
 Troup v. Wood, 557. 
 Trueman v. Loder, 435. 496, 513. 
 Trust v. Delaplaine, 559. 
 Tucker v. Ross, 332. 
 Tull v. David, 535. 
 Turley v. Bates, 239, 27D. 
 Turner v. Mason, 122, 124. 
 Turtle v. Tuttle, 168. 
 Tuxworth v. Moore, 267. 
 Twist v. Kelly, 288. 
 Tyers v. Rosedale & Ferryhill Iron 
 
 Co., 451. 
 Tyler v. Bennett, 194. 
 
 U. 
 
 Uhl v. Robinson, 583. 
 
 United States v. Hathaway, 214. 
 
TABLE OF CASES. 
 
 XXIX 
 
 United States v. Parmlee, 436. 
 United States Reflector Co. v. 
 
 Rush ton, 276. 
 Upton v. Strubridge Cotton Mills, 
 
 286. 
 Upton v. Winchester, 223. 
 Utley v. Donaldson, 572. 
 
 V. 
 
 Valpy v. Gibson, 222. 
 
 Vance v. Boynton, 262, 265. 
 
 Vanderbilt v. Eagle Iron Works, 
 297. 
 
 Vaustenberg v. Hoffman, 391. 
 
 Van Sickle v. Nester, 167. 
 
 Van Woert v. Albany & Susque- 
 hanna R. R. Co., 248, 293. 
 
 Vassar v. Camp, 52, 461. 
 
 Vaupel v. Woodward, 228, 474, 
 583. 
 
 Vawter v. Griffin, 147, 148. 
 
 Veaziev. Williams, 556, 561. 
 
 Veazy v. Harmony, 299. 
 
 Ventrcss v. Smith, 563. 
 
 Vincent v. Geimand, 15, 308. 
 
 Vidal v. Thompson, 609. 
 
 Vielie v. Osgood, 465, 475. 
 
 Vining v. Gilbreth, 330. 
 
 Violett v. Powell, 405. 
 
 Vischer v. Webster, 156. 
 
 "W. 
 
 Waddington v. Bristow, 160, 161. 
 Wade v. New York & Oswego 
 Midland Railroad Co., 280, 291. 
 Wain v. Warlters, 5, 242. 
 Walden v. Murdock, 262, 326, 332. 
 Waldron v. Chase, 298. 
 Waldron v. Romaine, 339, 344. 
 Walker v. Constable, 518. 
 Walker r. Hening, 531, 581. 
 Walker v. Lovell, 107. 
 Walker v. Nussey, 362, 384. 
 Walker v. Sherman, 156. 
 Walker v. Supple, 137. 
 
 Wallis v. Littell, 437. 
 Wallis v. Smith, 19. 
 Wallis v. Wallis, 130. 
 Walrath v. Ingles. 372. 387. 
 Walrath v. Richie, 274, 384. 
 Walsh v. Barton, 557, 562. 
 Ward v. Shaw, 330. 
 Ward v. The People, 214. 
 Warfield v. Wisconsin Cranberry 
 
 Co., 275. 
 Warlow v. Harrison, 562, 570. 
 Warner v. Feige. 417. 
 Warner v. Trow, 195. 
 Warren v. Leland, 179, 196. 
 Wartman v. Breed, 256. 
 Warwick v. Bruce, 161, 170. 
 Warwick v. Slade, 513, 573. 
 Waterman v. Meigs, 189. 
 Watson v. Spratley, 139. 
 Watt v. Wisconsin Cranberry Co., 
 
 457. 
 Watts v. Friend, 15, 46, 77, 05, 115, 
 
 154, 240, 338. 
 Waydell v. Luer, 391. 
 Weatherby v. Higgins, 166. 
 Webber v. Howe, 351. 
 Webster v. Holian, 551. 
 Webster v. Zeilly, 47, 404, 409,438. 
 Weiand v. Crichfield, 118. 
 Weigbtman v. Caldwell, 71, 113, 
 
 404. 
 Welch v. Moffat, 297. 
 Weld v. Carne, 264. 
 Weld v. Cutler, 328. 
 Welford v. Beazley, 450. 
 Wells v. Day, 235,541. 
 Wells v. Railway Company, 458. 
 Welz v. Rodeus, 133a. 
 Wemple v. Knoff, 410, 437. 
 West v. Newton, 440. 
 Wentworth v. Wentworth, 598. 
 Wescott v. Delano, 172. 
 Westbrook v. Eager, 156. 
 Western v. Russell, 422. 
 Westheimer v. Peacock, 606, n. 2. 
 Weston v. McDowell, 137. 
 Wetmore v. Neuberger, 193. 
 
XXX 
 
 SALES. 
 
 WhaJey v. Hinchman, 409, 458. 
 Wheat v. Cross, 406. 
 Wheelwright v. Depeyster, 563. 
 Whelan v. Sullivan, 444. 
 Whipple v. Foot, 156. 
 Whipple v. Thayer, 267. 
 Whitchurch v. Whitchurch, 6. 
 White v. Coen, -494, 518, 548. 
 White v. Foster, 95, 181, 212. 
 White v. Madison, 488. 
 White v. Maynard, 211. 
 White v. Proctor, 546, 550, 569. 
 Whitehead v. Anderson, 341. 
 Whitehouse v. Frost, 230, 298. 
 Whitrnarsh v. Conway Ins. Co., 
 
 415. 
 Whitrnarsh v. Walker, 201. 
 Whitridge v. Parkhurst, 435. 
 Whittemore v. Gibbs, 147. 
 Whitwell v. Vincent, 230. 
 Whitwell v. Wyel-, 367, 374. 
 Wiener v. Whipple, 489. 
 Wilbur v. How, 554. 
 Wilcox v. Hunt, 608. 
 Wilcox v. Jackson, 286. 
 Wildbahn v. Robidoux, 584. 
 Wilder v. Cowles, 503. 
 Wilkes v. Ferris, 314, 326, 330. 
 Wilkinson v. Evans, 428, 432. 
 Wilkinson v. Holiday, 279, 334. 
 Wilks v. Atkinson, 84. 
 Wilmouth v. Patten, 302. 
 Williams v. Bacon, 409, 438, 523. 
 Williams v. Burgess, 338. 
 Williams v. Millington, 540. 
 Williamson v. Farrow, 531. 
 Williams v. Morris, 403. 
 Williams v. Poor, 567. 
 Williams v. Robinson, 242, 403, 
 
 410, 423, 425. 
 Williams v. Ross, 544. 
 Williams v. Woods, 435. 
 Wilson v. Hunter, 435. 
 
 Wilson v. Watts, 10. 
 
 Winn v. Albert, 582. 
 
 Winship v. Buzzard, 69. 
 
 Winslow v. Bradley, 595. 
 
 Wisman v. Lucksinger, 208. 
 
 Wisnell v. Tefft, 584. 
 
 Withers v. Reynolds, 444. 
 
 Wolfe v. Tuyster, 557. 
 
 Wolfenden v. Wilson, 57, 122. 
 
 Wcod v. Baxter, 546. 
 
 Wood v. Hall, 557. 
 
 Wood v. Lake, 132. 
 
 Wood v.Leadbitter, 132. 
 
 Wood v. Manley, 199, 211. 
 
 Wood v. McGee, 298. 
 
 Wood v. Shultis, 4. 
 
 Woodburn Wheel Co. v. Philbrook, 
 232. 
 
 Woodford v. Patterson, 262. 
 
 Woodward v. Harris, 440. 
 
 Worrall v. Munn, 423a, 494. 
 
 Wooster v. Sage, 338. 
 
 Wright v. Dannot, 534, 546. 
 
 Wright v. Jones, 583. 
 
 Wright v. O'Brien, 88, 122. 
 
 Wright v. Wakeford, 479. 
 
 Wright v. Weeks, 225. 
 
 Wylie v. Kelly, 262, 386. 
 
 Wyndham v. Chetwynd, 6, 10. 
 
 Wynne v. Jackson, 609. 
 
 Wyoming National Bank v. Day- 
 ton, 326. 
 
 Yale v. Seely, 207, 263. 
 
 Yallop-De Groot Company v. Min- 
 neapolis & St. Louis R. R. Com- 
 pany, 312. 
 
 Yeakle v. Jacob, 210. 
 
 Young v. Blaisdell, 248, 263. 
 
 Young v. Miles, 298. 
 
 Young v. Mertens, 413. 
 
 Younge v. Jervis, 194. 
 
LAW OF SALES 
 
 OF 
 
 GOODS, WARES AND MERCHANDISE 
 
 UNDER 
 
 THE STATUTE OF FKAUDS. 
 
 CHAPTEE I. 
 
 OF THE AUTHORSHIP AND HISTORY OF THE STATUTE OF 
 
 FRAUDS. 
 
 § 1. General observations. 
 
 2. The statute of frauds ; its preamble and meaning. 
 
 3. Objects and requirements of the"statute. 
 
 4. The statute prescribes a rule of evidence. 
 
 5. Authorship of the statute ; Sir Matthew Hale. 
 
 6. Different opinions as to its authorship. 
 
 7. Certain sections prepared by Sir Leoline Jenkins. 
 
 8. Preparation and passage of the statute ; Lord Nottingham in con- 
 
 nection with the same. 
 
 9. The statute passed upon by several committees. 
 
 10. Criticisms upon the statute of frauds. 
 
 11. Of the early objections to the statute. 
 
 12. Conflict of opinion as to its meaning. 
 
 13. The common law ; reformations under section 17 of the statute. 
 
 14. Lord Tenterden's act ; part of the statute. 
 
 15. Some early cases affecting executory contracts. 
 
 16. The common law doctrine. 
 
 17. Contract and communication ; Simmons v. Swift. 
 
 18. Of auction sales; conflict of authority as to such sales being 
 \ within the statute ; the case of Simon v. Metevier. 
 
 1 
 
SALES. 
 
 [_CHAP. 
 
 19. Justice as dispensed by the chancellors ; the modern tendencies. 
 
 20. Contracts construed according to the intention of the parties. 
 
 21. Interpretation of the statute; Lord Tenterden's views. 
 
 22. Nice distinctions discarded in construing the statute of frauds. 
 
 23. The common and statute law ; the lex scripta and lex non scripta. 
 
 § 1. A learned jurist has eloquently said that on the 
 pages of the statute book are chiseled, as indelibly as on 
 the pyramids of Cheops or on the frieze of the Parthenon, 
 the episodes of a nation's history. They are foot-prints on 
 the highway of legislation. 
 
 There, as in relief they stand, evidences of popular strug- 
 gle; reminiscences of religious animosity; memorials of at- 
 tempts to enlarge private rights or control public wrongs; 
 or to influence the currents of commerce. 
 
 Each enactment in turn, from the renowned and far- 
 reaching Magna Charta of King John, to the Statute of 
 Frauds of King Charles, and from the Statute of Frauds to 
 the present time, has required and received judicial con- 
 struction. 
 
 The sages of the law, says Plowden, have been guided 
 by the intention of the legislature, which they have alwaj'S 
 taken according to the necessity of the matter, and accord- 
 ing to that which is consonant to reason and good discretion. 
 
 Judges have sometimes deemed themselves vested with 
 authority to disregard the letter of a statute, in order to 
 attain what they conceived to be the true ends of justice. 
 
 It is said that the law consists of two parts : body, and 
 soul. The letter of the law is the body of the law, and the 
 sense and reason of the law is the soul of the law. Quia 
 ratio legis est anima leges. 
 
 § 2. The act for the prevention of frauds and perjuries, 
 or according to its more familiar appellation, the " Statute 
 of Frauds," was passed in the twenty-ninth year of the 
 reign of Charles the Second, and went into effect on the 
 24th day of June, 1677. 1 The intention of the act is fairly 
 
 1 The reign of Charles II., prop- the day on which his ill-fated 
 erly dates from January 30, 1649, father, Charles I., was beheaded, 
 
CHAP. I.J AUTHORSHIP OF STATUTE OF FRAUDS. 3 
 
 expressed in the preamble: ' : For prevention of many 
 fraudulent practices which are commonly endeavored to be 
 upheld by perjury and subornation of perjury." : 
 
 The high estimation in which the statute of frauds has 
 been held, and the profound wisdom which inspired its pol- 
 icy, are evinced in the lofty encomiums which, from age to 
 age, have been pronounced upon it. 
 
 For over two hundred years the statute of frauds has not 
 only been the subject of much litigation, but has been 
 largely instrumental in regulating the important matters of 
 trade and commerce. A distinguished American jurist has 
 said that it is the most comprehensive, salutary and impor- 
 tant legislative regulation on record affecting the security 
 of private rights. 2 
 
 As the history of the statute of frauds, if not some- 
 what obscured in a labyrinth of uncertainty, is not as well 
 understood as it should be, it is deemed of sufficient im- 
 portance in this chapter to give a brief outline of its policy, 
 its authorship and its innovations of the common law. 
 
 § 3. In general, the object of the statute of frauds is to 
 prevent dishonest practices in the ordinary transactions 
 of business. It is intended to guard against the dishonesty 
 of parties and the perjury of witnesses, as well as the mis- 
 understanding and mistakes of honest men. 
 
 While it will be observed that the word agreement does 
 not appear in section 17, it is required by that section that 
 " some note or memorandum in writing of the said bargain 
 be made and signed by the-jparties to be charged by such con- 
 tracts, or their agents thereunto lawfully authorized." 
 
 Section IT aims to draw the line of demarcation between 
 
 and not from the Restoration in that which is the plain object and 
 
 1660, as some writers have stated, general intention of the legislature 
 
 1 The enacting words of an act of in passing the act, and the pre- 
 
 parliament are not always to be amble affords a good clue to dis- 
 
 limited by the words of the pre- cover what that object was. Lord 
 
 amble, but must in many instances Tenterden, in Hatton v. Cave, 1 B. 
 
 go beyond it. Yet the words in the & A., 538. 
 enacting part must be confined to 2 2 Kent's Comm., 490. 
 
SALES. 
 
 [chap. 
 
 the negotiation and the completion of the bargain in re- 
 spect to the sale of goods, wares or merchandise. To 
 accomplish this result it requires certain clear and unequiv- 
 ocal acts to be done in order to show that the thing has 
 ceased to be in fieri. These acts are, either some note or 
 memorandum in writing, or proof of some act confirma- 
 tory of the contract, as acceptance, earnest, or part pay- 
 ment, on the part of the buyer. 
 
 A memorandum of the contract being reduced to writ- 
 ing, and signed or subscribed by the party to be charged 
 thereby, according to the statutory requirement, the object 
 is effectually attained. The writing, in such case, becomes 
 its own interpreter. 
 
 The act'of part payment, or of delivery and acceptance, 
 mentioned in the statute, is something over and beyond the 
 contract, of which they are a part performance, and which 
 they assume as already existing. 
 
 § 4. As parol evidence has always been susceptible of 
 fabrication, the purpose of the statute of frauds is to throw 
 a safeguard around ordinary business, by requiring certain 
 formal acts of the parties to the contract. While section 
 17 does not declare contracts void in defaultof such formal- 
 ities being observed, nor in any way affect their substance 
 Or ingredients, it does prescribe, as a rule of evidence, in 
 cases where they are sought to be enforced by an action at 
 law, that oral proof thereof shall not be received. 1 If exe- 
 cuted, the effect of its performance on the rights of the 
 parties is unchanged and the consideration may be recov- 
 ered. 2 
 
 It is settled by abundant authority that in carrying out 
 its purpose, the statute only affects the modes of proof as to 
 
 1 Browne on Stat, of Frauds, § 115 Rosepaugh v. Vredenburgh, 16 id., 
 and note ; Eoberts on Frauds, Pref ., 60 ; King v. Brower, 2 Hill, 485 ; 
 XXII. Day v. N. Y. Cent. R. R. Co., 51 N. 
 
 2 Stones. Dennison, 13 Pick., 1; Y, 583; Boy den v. Crane, 7 Alb. 
 Basford v. Pearson, 9 Allen, 387; Law Jour., 203: Towsley v. Moore, 
 Nutting v. Dickenson, 8 id., 540; 30 Ohio St. R., 184; Jellison v. 
 Wood v. Shultis, 4 Hun, 309 ; Jordan, 68 Maine, 373. 
 
CHAP. I.J AUTHORSHIP OF STATUTE OF FRAUDS. 5 
 
 contracts falling within it. If a contract be completed ac- 
 cording to the common law rules, then, as between the par- 
 ties, at least, the property vests in the purchaser, and a 
 right to the price in the seller. If a memorandum or proof 
 of the alternative requirements, peculiar to the seventeenth 
 section, be furnished, then the oral contract, as proved by 
 the other evidence, is established. 
 
 § 5. The glory of the authorship of the statute of frauds 
 cannot justly be ascribed to any one man; for reason and 
 tradition alike agree that this remarkable piece of legisla- 
 tion was the combined product of several judicial minds. 
 Just as Homer had many birthplaces, so the statute of frauds 
 has many progenitors. But, preeminent among the bright 
 names to which contemporaneous history points as the 
 principal author of the statute, is that of Sir Matthew Hale. 
 This patient and profound jurist and great common law law- 
 yer, together with the able civilian, Sir Leoline Jenkins, is 
 said by Chief Baron Gilbert to have " prepared " the statute 
 of frauds; 1 and Lord Ellen borough, in 1804, observed that 
 the statute was "drawn " by Lord Hale. 2 
 
 Sir Matthew Hale resigned his place as chief justice of 
 the kind's bench in February, 1676; he died on the follow- 
 ing Christmas day. No name has been more venerated. 
 His qualifications as a judge, says Lord Campbell, always 
 shone with luster in proportion as the occasion called forth 
 their display. 
 
 "Lord Hale," says Mr. Kunnington, his biographer, "was 
 
 actuated by the noble example of Pomponius Atticus; he 
 
 walked through times of the most turbulent distraction, 
 
 uncensured, unhurt." 
 
 On the bench 
 
 He reigned 
 
 In a superior sphere of cloudless day, 
 
 A pure intelligence. 
 
 i Chief Baron Gilbert's Rep. in the Chief Justices of England; 
 
 Equitv, 171, published in 1742. Bishop Burnet's Life of Hale, pub- 
 
 2 Wain v. Warlters, o East, 10. lished in 1682; Eunnington's Life 
 
 See, also. 3 Campbell's Lives of the of Sir Matthew Hale, published in 
 
 Chancellors, 418; 2 Camp. Lives of Dublin, 1792. 
 
6 SALES. [CHAP. I. 
 
 Although Hale's " Pleas of the Crown " and his " History 
 of the Common Law " are enduring monuments to his name, 
 it is as a learned and upright judge that his fame chiefly 
 survives. 
 
 Cowper speaks of 
 " Immortal Hale, for deep discernment praised and sound integrity." 
 
 § 6. In Eoger North's life of his brother, the Lord 
 Keeper Guilford, it is substantially stated that Lord Hale 
 had the pre-eminence and was chief in the fixing of that 
 law, and he had reason to think it had its first spring from 
 his Lordship's notice. 1 
 
 On this question, however, Lord Mansfield has expressed 
 some doubt. He bases his opinion upon the fact that the 
 statute of frauds was not passed until after Lord Hale's 
 death, and on' the assumption that the act was introduced 
 in parliament "in the common way, and not upon any ref- 
 erence to the judges." - But his reasons do not seem suffi- 
 cient to countervail the contemporaneous evidences and the 
 numerous opinions of the judges, that Lord Hale, in the 
 main, drafted the statute. 3 His long experience in the 
 court of king's bench, his profound interest in everything 
 relating to contracts of bargain and sale of personal prop- 
 erty, and in administering the common law, lead to the 
 conclusion that he was one of the principal authors of the 
 statute of frauds. While no man may bear the palm alone, 
 it is altogether improbable that a bill of such magnitude, 
 making, as it did, so many innovations upon the delicate 
 interests of private rights, should have received the con- 
 currence of the parliament, and the approval of the king, 
 without any reference to the judges, and a proper sanction 
 from the bench. 
 
 1 Eoger North's Life of Lord According to the Ninth Report 
 
 Keeper Guilford, vol. 1, p. 108. of the Historical MSS. Commis- 
 
 2 Wyndham v. Chetwynd, 1 sion, recently published in Eng- 
 
 Burr., 418. land, the bill was first introduced 
 
 3 Whitchurch v. Whitchurch, 1 in parliament in the session of 
 
 Strange, 621; Gilbert's Rep. in Eq., 1673-4, at least three years before 
 
 171 ; Taylor on Ev., § 1000. its final passage. 
 
CHAP. I.J AUTHORSHIP OF STATUTE OF FRAUDS. 7 
 
 An accurate writer has said that this enactment not only- 
 received the best inspiration of tbe courts, but was the act- 
 ual product of different judicial minds. 1 
 
 § 1. Reliable authorities agree that the distinguished Sir 
 Leoline Jenkins took some part in the preparation of the 
 statute of frauds. His biographer, Mr. "Wynne, says that 
 he was absent from England, on a foreign mission, for 
 nearly four years, from December, 1675. 2 But it seems to 
 be evidenced by abundant author it}' that the statute was in 
 course of preparation long before that period. 
 
 As Sir Leoline Jenkins was considered able authority in 
 probate law, the sections of the statute of frauds in relation 
 to wills may be reasonably ascribed to him. In fact, the 
 ninth report of the Historical MSS. Commission, recently 
 published in England, declares that he drew the sections 
 of the.statute upon that subject. 3 
 
 The influential courtier, Lord Guilford, 4 keeper of the 
 great seal under Charles the Second, had something to do 
 in preparing certain sections of the statute, and also did ef- 
 ficient service in furthering its passage through parliament; 
 although neither Lord Campbell, nor Macaulay, accord to 
 him a very high place on the roll of jurists. 5 
 
 § 8. The sections relating to trusts and devises of land 
 are believed to have been drawn by Lord Chancellor USTot- 
 tingham. True it is, that in promoting the passage of the 
 bill, at least, he took an active and conspicuous part. This 
 is evidenced not only from the recent report of the Histor- 
 ical MSS. Commission, but from the carefully considered 
 opinion of Lord Nottingham, which was discovered by Lord 
 Eldon in 1823, and which is reported in Ash v. Abdy. 6 He 
 
 i James Schouler in Ain. Law 4 Roger North's Life of Guilford, 
 
 Review for May-June, 1884. vol. 1, p. 108, published in 1740. 
 
 * Wynne's Life of Sir Leoline He was a brother of Roger North, 
 
 Jenkins, vol. 1, pp. 3, 53, published the biographer, 
 
 in 1734. He was abroad on his * 3 Campbell's Lord Chancellors, 
 
 Nimeguen mission from December, 491 ; 1 Macaulay's Hist, of England, 
 
 1675, to August, 1679. ch. 2. 
 
 3 See the Irish Law Times, De- <>3 Swanston's R., 664 (1823). 
 cember 6, 1884. 
 
8 SALES. [CHAP. I. 
 
 says : " I had some reason to know the meaning of this law, 
 for it had its first rise from me, who brought the bill into 
 the house of lords, although it afterwards received some ad- 
 ditional improvements from the judges and the civilians." 
 Of the principle and policy of the statute of frauds Lord 
 Nottingham is said to have declared, with parental pride, 
 that every line was " worth a subsidy." 1 
 
 Contemplating the extensive litigation which its "ambig- 
 uous language " has caused, says Taylor in his work on evi- 
 dence, it may be added " that every line of it has cost a 
 subsidy." This blame, however, he declares, must be con- 
 verted into unqualified praise, if regard be had to the ob- 
 jects which it seeks to attain, and which it has, in fact, to a 
 great extent attained. 2 
 
 Mr. Kent, in his commentaries, published in 1827, observes 
 that " it was said at Westminster Hall, upwards of. sixty 
 years ago, that the statute of frauds had not been ex- 
 plained at a less expense than £100,000 sterling. I should 
 suppose, from the numerous questions and decisions which 
 have since arisen upon it, that we might put down the sum 
 at a million and upwards." 3 
 
 The reporter, Mr. Swanston, in Ash v. Abdy, supra, says : 
 "No one of the popular conjectures concerning the history 
 of this celebrated statute refers its origin, to Lord Notting- 
 ham. That fact seems placed beyond doubt by the ac- 
 count in the text ; and there may have been some foundation 
 for the tradition that Sir Matthew Hale and Sir Leoline 
 Jenkins assisted in its preparation." 4 
 
 'Roger North's Life of Guilford, father of equity, and yet it is said 
 
 209. This opinion is adopted by that he worshiped Sir Matthew 
 
 the lord chancellor in Popham v. Hale as his master. Lord Hale 
 
 Eyre, Lofft, 786. considered equity as part of the 
 
 2 See 1 Greenl. Ev., 263; 2 St. common law, and one of the 
 
 Ev., 472; Rann v. Hughes, 7 T. R., grounds of it, and, as far as possi- 
 
 350, n; Burrillv. Tuessell, 4 Taunt., ble, he reduced it to certain rules 
 
 121. and principles, that men might 
 
 3 2 Kent's Com., ed. 1837, p. 408, study it as a. science and not think 
 
 note. the administration of it had any- 
 
 4 Lord Nottingham was called ihe thing arbitrary in it. 
 
CHAP. I.J AUTHORSHIP OF STATUTE OF FRAUDS. *9 
 
 § 9. Traditional history and careful research agree that 
 the statute of frauds was several years in course of prepara- 
 tion. The bill seems to have been introduced in the com- 
 mons for the first time in the session of 1673, and was 
 brought in again in 1675, when it went into committee, 
 where certain alterations and omissions were made. At 
 the following session, January 19, 1676, it was read in the 
 house of lords. The bill was then referred to a commit- 
 tee, consisting of thirty-seven temporal and ten spiritual 
 peers, "assisted by the lord chief justice of the common 
 pleas, Justices Windham, Jones and Scroggs ;" and on the 
 6th day of March following, the Earl of Dorset reported 
 that the committee had met several times and were of opin- 
 ion that " the bill was fit to be engrossed, with some amend- 
 ments." 
 
 Upon being again presented in the commons it was 
 referred to a committee of over fifty members, including the 
 master of the rolls, and all the members of the house " who 
 were of the long robe." The bill underwent certain changes 
 at the hands of this committee, when it was returned to the 
 house of lords, where, on the 16th day of April, 1677, it re- 
 ceived the ro} 7 al assent. 1 
 
 From this brief outline, the conclusion will not escape 
 the mind of the student, that after being prepared by able 
 jurists, and amended and passed upon by several competent 
 committees, the statute of frauds came from the hands of 
 parliament full-freighted and luminous with judicial knowl- 
 edge and wisdom. 
 
 § 10. Although the statute of frauds was prepared by 
 able jurists, and revised and perfected by several commit- 
 tees, some writers have seen fit to inveigh against it as ex- 
 
 1 The statute of frauds went into the "Statutes of the Realm," 
 effect, according to its enacting printed under the authority of par- 
 clause, on the 24th day of June, liament, in 1819, gives the date as 
 
 1677. of 1677 - 
 
 The Cambridge edition of the The year, 29 Car. II., is, properly 
 British Statutes at Large dates the speaking, 1676-1677, the parliament- 
 acts of 29 Car. II. as of 1676 ; while ary year. 
 
IT) SALES. [CHAP. I. 
 
 hibiting an obscurity of arrangement, and as being inexact 
 and inconsistent in phraseology. 1 % 
 
 Lord Denman, while pronouncing the statute one of the 
 wisest laws in principle, considered it far from being com- 
 plete in its details, or fortunate in its execution. 2 
 
 Baron Bramhall, in Noble v. Ward, 3 said that he did 
 not consider the expression, " allowed to be good," a very 
 happy one. The hesitation apparent in the minds of the 
 authors, says an able writer, appears to have been due to the 
 want of a perfectly distinct conception of a contract, and of 
 the difference between a written contract and written evi- 
 dence of a verbal contract. The latest adverse criticism upon 
 section IT is by Mr. Justice Stephen, in the Law Quarterly 
 Review for January, 1885. The obscurity, he says, lies 
 mainly in the use of four very common expressions: "con- 
 tract for the sale of good," " goods," " note or memoran- 
 dum in writing of the bargain," " signed." He says that 
 section 17 sins-against several of what ought to be the well- 
 recognized rules of all rational legislation, viz. : It estab- 
 lishes a highly artificial rule about a very simple matter; it 
 is a relic of times when the best evidence on such subjects 
 was excluded on a principle now exploded ; and it is, as the 
 multitude of cases decided upon it clearly show, obscure in 
 reference to the subject to which it relates. 
 
 § 11. An able writer on the law of evidence observes 
 that the statute of frauds is drawn in so inartificial a manner 
 as to confer little credit on the skill of the draftsman. 4 
 
 1 Eight v. Price, 1 Douglas, 241 be good or valid ; " " Shall be bind- 
 (1779), note ; Buckeridge v. Ingram, ing," says the Arkansas statute; 
 2 Vese3', 662; Wyndham v. Ohet- " Shall be good," reads the Florida 
 wynd, 1 Burr., 418; Browne on statute; Connecticut the same; 
 Statute of Frauds, introductory " Shall be valid," says the statute 
 chapter: Wilson v. Watts, 9 Md., of Indiana; " Allowed to be good," 
 460; Lamborn v. Watson, 6 Harr. says Colt, J., in Townsend v. Har- 
 & John., 255. graves, 118 Mass., 334, "means 
 
 2 Doe v. Harris, 8 Ad. & E., 12. good for the purpose of a recovery 
 »L. R. 1 Ex.. 117; Browne on under it." 
 
 Statute of Frauds, § 115, n. The 4 Taylor on Ev., £ 1000. 
 Massachusetts statute reads " Shall 
 
CHAP. I.J ATJTHOKSHIP OF STATUTE OF FKAUDS. 11 
 
 Mr. Justice Best, at nisi j>r ins, once said that the statute 
 was much objected to at the time of its passage, and that 
 judges appeared anxious to get rid of it, but that in later 
 times they became desirous of giving to it its full effect. 1 
 This piece of criticism, written over a century and a half 
 after the statute of frauds was passed, does not seem to be 
 supported by authority, contemporaneous with or immedi- 
 ately subsequent to its passage, and may, without seeming 
 harshness, be regarded as obiter dictum. Lord Kenyon de- 
 clared that the statute of frauds is "one of the wisest laws 
 in our statute book." 3 And Abbott, C. J., expressed the 
 opinion that it was a highly beneficial and remedial statute, 
 and that it should be so construed as to further the object 
 and intention of the legislature, which was the prevention of 
 fraud? 
 
 This meritorious law applies with singular wisdom and 
 beneficence to the daily contracts and practical affairs of 
 mankind, relieving them of vagueness and uncertainty, and 
 checking, to some extent, the restless and reckless spirit of 
 litigation. 
 
 " I think the statute of frauds," said Best, C. J., " is a good 
 and wholesome statute." 
 
 § 12. While it is true that the judges in the early history 
 of the statute of frands experienced embarrassment in in- 
 terpreting some of its provisions, there does not seem to 
 have existed any great repugnancy to it. Nor were there 
 valid reasons why they should evade, or seek " to get rid of 
 it;" for the statute fixed and settled many legal principles, 
 which, before its enactment, were a source of much judicial 
 vexation. It seems clear, at least, that section 17 tended 
 to lighten the burdens of the courts, in relieving them of 
 the task and responsibility of deciding perplexing questions 
 arising under contracts which rested simply in parol. 
 
 The conflict of opinion in regard to the statute arose, no 
 
 ■ Proctor v. Jones, 3 Carr. & P., 2 Chaplin v. Rogers, 1 East, 194. 
 532; Mead v. Case, 33 Barb., 206, 3 Baldey v.. Parker, 2 Barn. & 
 Smith, J. Cres., 37; 9 Eng. C. L. E„ 16. 
 
12 SALES. [CHAP. I. 
 
 doubt, on account of the belief of some of the judges that 
 it had the indirect effect to create a new species of con- 
 tracts, intermediate between specialties and parol agree- 
 ments, partaking so far of the former as to avoid the 
 necessity of a consideration. 
 
 Thus, in Pillans v. Van Mierop, 1 Lord Mansfield (1765) 
 declared, in effect, that there was no such thing as a 
 nudum pactum in writing, and that "the ancient notion 
 about want of consideration was for the sake of evidence 
 only, for where it was reduced to writing, as in covenants, 
 specialties, bonds, etc., there was no objection to the want of 
 consideration ;" and that "the statute of frauds proceeded 
 upon the same principle." But that case has long since 
 been overruled in England and in this country. 
 
 This question was set at rest in Eann v. Hughes, 2 which 
 held that a written contract not under seal was merely a 
 parol agreement, the consideration . of which must be 
 averred and proved; that " the law of this country supplies 
 no means, nor affords any remedy, to compel the perform- 
 ance of an agreement made without sufficient consideration ; 
 such agreement is nudum pactum ex quo non oritur actio." 
 
 The embarrassments of the courts, and the expensive 
 litigations, in interpreting the seventeenth section of the 
 statute, were due also to the fact that the matters to which 
 it relates directly affect the important interests of ordinary 
 business life. 
 
 The earlier decisions sought to give literal and technical 
 meaning to its provisions and so came iu collision with the 
 habits and usages of trade and commerce. But the more 
 modern interpretation of statutes has been to give to the 
 words their customary acceptation, a broader and more 
 rational construction. 
 
 Considering the many old-time rules and usages which 
 the statute of frauds supplanted, it is not surprising that 
 difficulties in construing it should have arisen ; nor is it rea- 
 
 1 3 Burr., 1003. P. C, 550. See, also, Sears v. Brink, 
 
 2 4 Brown's Par. Cas., 27; 7 Bro. 3 Johns. (N. Y.), 310. 
 
CHAP. I.J ATTTHOKSHIP OF STATUTE OF FEAUDS. 13 
 
 sonable to expect that a statute so comprehensive and far- 
 reaching should be entirely free from inaccuracies. 
 
 Human wisdom, says Mr. Justice Story, never yet has 
 achieved anything perfect, and the most that can be ex- 
 pected from the most enlightened jurisprudence is, that it 
 shall contain within itself near approximations to the 
 soundest equity and moral justice, and in its adaptations be 
 fitted to the wants, the spirit and the policy of the age. 1 
 
 § 13. Before the enactment of the statute of frauds 
 there existed no adjudication requiring executory contracts 
 to be evidenced by writing. The common law recognized 
 the validity of verbal contracts of sale of goods and chat- 
 tels for any amount, however proven; but such contracts 
 rested upon parol proof, and therefore were open to the 
 mischief of fraud and falsehood. This the statute aimed 
 to remedy. While it is true that certain laws under the 
 Anglo-Saxon princes, and the codes of some of the northern 
 nations, contained prudential and protective rules and regu- 
 lations against frauds and perjury, it is also true that many 
 of these provisions had fallen into desuetude, which the 
 statute of frauds in part revived. This reformation, in 
 the modes of f roof , was salutary. It was demanded by the 
 circumstances of the times, and was admirably adapted to 
 the improved condition of society and the habits of the 
 trading community.'- The statute dispenses with no evi- 
 dence of consideration which was previously requisite, and 
 gives no efficacy to written contracts which they did not 
 
 1 Story on Part., 463. ject-niatter of the action exceeded 
 
 2 An interesting account of the the value of one hundred livres (a 
 early la ivs on this subject maybe livre being 181 cents). TheKoman 
 found in Roberts on Frauds ; law also required written evidence 
 Browne on the Statute of Frauds, in a great variety of cases, em- 
 and in Greenl. on Evidence (10th bracing nearly all the subjects con- 
 ed.), 262, n. The French law, by tained in the statute of frauds, 
 the Ordonnanee de Moulins, A. D. These are enumerated by N. De 
 1566, confirmed by act of 1667, Lescut, De Exam. Testium, cap. 
 parol or verbal evidence was inad- 26; Farenac, Oper. Tom., 2 App., 
 missible in all cases where the sub- 243. 
 
14 SALES. [CHAP. I. 
 
 formerly possess, but requires, under certain conditions, 
 more positive evidence than mere oral testimony. 
 
 Section 17 of the statute of frauds, 29 Car. II, reads as 
 follows, verbatim, et literatim: " And bee it further enacted, 
 by the authority aforesaid That from and after the said 
 fower and twentyeth day of June noe contract for the Sale 
 of any Goods, Wares or Merchandises for the price of ten 
 pounds Sterling or upwards shall be allowed to be good 
 except the Buyer shall accept part of the Goods soe sold 
 and actually receive the same or give something in earnest 
 to bind the bargaine or in part of payment, or that some 
 Note or Memorandum in writing of the said bargaine be 
 made and signed by the partyes to be charged by such 
 contract or their Agents thereunto lawfully authorized." 
 
 § 14. The statute passed 9 George IV. (1S28), familiarly 
 known as Lord Tenterden's act, declares that the provision 
 of the statute of frauds shall extend to all contracts for tlie 
 sale of goods to the value of 101. sterling and upwards, not- 
 withstanding the goods may be intended to be delivered at 
 some future time, or may not, at the time of the contract, be 
 actually made, procured or provided, or fit or ready for de- 
 livery, or some act may be requisite for the malting or com- 
 pleting thereof, or rendering the same fit for delivery. This 
 statute set at rest the vexed question, which had before ex- 
 isted, as to executory contracts for the sale of goods, «tc. 
 It is well settled that Lord Tenderden's act, which in Eng- 
 land is read in connection'with the seventeenth section of 
 the statute of frauds, includes contracts for goods to be 
 manufactured at a future time, or otherwise, not in a con- 
 dition to suit the wishes of the purchaser, or fit for deliv- 
 ery, at the time of the making of the contract. 1 
 
 § 15. The principal English cases, which held that exec- 
 
 i Humble v. Mitchell, 11 Ad. & Com. B., 587 (1856); 25 L. J. C. P., 
 
 El., 205; Scott v. Eastern Counties 257; Bowlby v. Bell, 3 C. B., 284. 
 
 Railway Co., 12 M. &W., 53: Tern- No similar law to that of Lord 
 
 pest v. Kilner, 3 C. B., 249; 3 M. G. Tenterden's has ever been enacted 
 
 & S., 251 ; Harmon v. Reeve, 18 in the United States. 
 
CHAP. I.J AUTHORSHIP OF STATUTE OF FKAUDS. 15 
 
 utory contracts should be excluded from the operation of 
 the statute of frauds, are Towers v. Osborne, 1 in 1724; 
 Clayton v. Andrews, 2 in 1767, and Groves v. Buck, 3 in 1814. 
 Cases holding the opposite view are Rondeau v. Wyatt, 4 
 in 1702 ; Cooper v. Elston, 5 in 1796, and Garbutt v. Watson, 6 
 in 1S22. In Bennett v. Hull, 7 a New York case, decided in 
 1S13, arising under the fifteenth section of the statute of 
 frauds of that state (which was then the same as the sev- 
 enteenth section of the English statute), it was held that 
 the section applied as well to executory as to other con- 
 tracts; since which time the decisions in that state have 
 been quite uniform on that subject. 8 
 
 § 16. Whilst the consideration of the bargain under the 
 old common law was the immediate payment of the price, 
 under the more modern decisions it is held that the con- 
 sideration may be the purchaser 1 s promise or obligation to 
 pay. 
 
 A fair illustration of the common law doctrine is given in 
 Sheppard's Touchstone: If one sells me his horse or any 
 other thing for money, or other valuable consideration, and 
 first, the same thing is to be delivered to me at a day cer- 
 tain, and by our agreement a day is set for the payment of 
 the money; or, secondly, all; or, thirdly, part of the money 
 is paid in hand ; or, fourthly, I give earnest money, albeit 
 it be but a penny, to the seller ; or, lastly, I take the thing 
 bought by agreement into my possession, where no money 
 is paid, earnest given, or day set for the payment, in all 
 these cases there is a good bargain and sale of the thing to 
 alter the property thereof. 
 
 In the first case, I may have an action for the thing, and 
 
 1 1 Strange, 506. See Watts v. 8 Crookshank v. Burrell, 18 John. 
 
 Friend, 10 B. & C, 446. (N. Y.) B., 59; Jackson v. Covert, 
 
 2 4 Burr., 2101. 5 Wend., 139; Outwater v. Dodge, 
 
 3 3M. &'s., 178. 6 Wend., 397; SewalL v. Fitch, 8 
 
 4 2H. Bl., 63. Cow., 215; Merritt v. Clason, 12 
 57 t. R., 14. John., 102; and 14 id., 484, in er- 
 »5B. & Aid., 613. ror; Vincent v. Germond, 11 id., 
 1 10 John. (N. Y.) R., 364 283. 
 
16 SALES. [CHAP. I. 
 
 the seller for his money ; in the second, I may sue for and 
 recover the thing bought,; in the third, I may sue for the 
 thing bought, and the seller for the residue of the money ; 
 in the fourth, where earnest is given, we may have recipro- 
 cal remedies, one against another; and in the last case, the 
 seller may sue. for his money. 1 
 
 § 17. In Simmons v. Swift, 2 it was held that where a bar- 
 gain is made for the purchase of goods, and nothing is said 
 about payment or delivery, the property passes immediately, 
 so as to cast upon the purchaser all future risk, if nothing 
 remains to be done to the goods, although he cannot take 
 them away without paying the price. It may be laid down 
 as an almost universal rule, that in all agreements there 
 must be quid pro quo presently, except a day be expressly 
 fixed for the payment; otherwise it is nothing but communi- 
 cation? 
 
 § 18. For over a century after the statute of frauds was 
 passed, one of the questions which embarrassed the courts 
 was, whether sales of goods, wares or merchandise by auc- 
 tion properly fell within its operation ; although this mode 
 of selling personal property had existed in Great Britain, 
 for centuries prior to the reign of Charles the Second. 
 
 Lord Mansfield, as late as 176G, declared that the solem- 
 nity of auction sales precluded the possibility of perjury as 
 to the fact itself of sale, and accordingly he was led to the 
 
 1 William Sheppard's Touchstone pard purchased, where, among 
 of Common Assurances, pp. 224, other books, he found the original 
 225. Mr. Justice Doderidge, accord- manuscript of this treatise, and 
 ing to reliable authority, was the au- afterwards published it as his own. 
 thor of the Touchstone. See Mr. Sir Creswell Levinz had seen the 
 Hilliard's and Mr. Preston's preface manuscript in Justice Doderidge's 
 to that work. Mr. Edward Hilliard, hands, and from him Mr. Pegott 
 of Lincoln's Inn, in 1780, edited the who was my author, had this in- 
 work, and a distinguished convey- formation." See, also, Law Ma°-a- 
 ancer, Mr. Booth, wrote the follow- zine, vol. 1, page 561, note 1. 
 ing on its title page: " No part of 2 5 B. & C, 862; Dixon v. Yates, 
 this book is Sheppard's but the title, 5 B. & Ad., 313, 340. 
 for it was originally wrote by Jus- SNoy's Maxims, 87, 89; Macom- 
 tice Doderidge, whose library Shep- ber v. Parker, 13 Pick., 183. 
 
CHAP. I.] AUTHORSHIP OF STATUTE OF FRAUDS. IT 
 
 inclination that auctions in general were not within the 
 statute. 1 In this view Justices "Wilmot and Yates concurred. 
 
 These opinions were written after mature consideration. 
 Lord Mansfield's decision seems to have been based upon 
 the theory that section 17 was only intended to extend 
 to the mischief created by private and clandestine contracts. 
 It was left for Lord Ellenborough, in Hinde v. Whitehouse, 2 
 to compass the true bearing, remove all doubts, and settle 
 the law on that question. The courts, since that case, have 
 uniformly recognized the language of that section as clearly 
 justifying his interpretation. In that case certain sugars 
 were sold at auction, according to a printed catalogue, with 
 the conditions of sale. The auctioneer wrote down in the 
 same line with the lots purchased, the name of the buj'er, 
 and the price. It was objected that the whole contract 
 must appear upon the paper signed, with the names of the 
 defendants; that the conditions of sale, which formed a ma- 
 terial part of the contract, were not signed, nor in any way 
 connected, except by parol testimony; and the mere writing 
 on the catalogue — having no reference to the conditions of 
 sale — was not a memorandum within the meaning of the 
 statute of frauds. But the sale was held to be complete, 
 however, on the ground that the samples, which had been 
 treated as part of the bulk, were to be considered as " part 
 of the goods sold, accepted and actually received as such 
 by the buyer," within the words of the statute. 
 
 Lord Ellenborough said: " "With all deference to these opin- 
 ions (referring to the decision of Lord Mansfield and the 
 other judges, in Simon v. Metevier, supra), I do not at pres- 
 ent feel any sufficient reason for dispensing with the ex- 
 press requisition of a memorandum in writing, in a statute 
 applying to all sales of goods above the value of 101., with- 
 out exception, merely because the quantum of parol evi- 
 
 i Simon v. Metevier, 1 W. Black., the statute does not extend to such 
 599; but in Blagden v. Bradbear, sales." 
 12 Vesey, 466, the court said: "I 2 7 East, 558 (1806). 
 should hesitate to say the policy of 
 2 
 
18 SALES. [CHAP. I. 
 
 dence in the case of an auction isdikely to render the danger 
 of perjury less considerable." 
 
 The court, in Kenworth v. Scofield, 1 recognized and fol- 
 lowed the rule laid down by Lord Ellenborough. Mr. Justice 
 Holroyd, delivering the opinion of the court, said : " Upon 
 the authority of Hinde v. Whitehouse, I both think that 
 auctions of goods are within the statute of frauds, and that 
 there has not been a signature to a memorandum of the 
 bargain sufficient to satisfy the seventeenth seetion of that 
 act." 
 
 The language of the seventeenth section seems broad 
 enough to comprehend every species of contract, whether 
 made in the ordinary way between individuals, clandestinely, 
 or by bidding at an auction sale in presence of many peo- 
 ple. 
 
 § 19. In view of the controlling influence that the legis- 
 lature has had in modern times over jurisprudence, it may 
 be said that it has quite supplanted the chancellor in respect 
 to contracts. In ancient times the chancellors dispensed 
 justice according to the dictates of their conscience, or, as 
 it used to be said, according to the length of the chancel- 
 lor's foot, unfettered by rule or precedent; they did not 
 hesitate to ignore acts of parliament, and even assumed 
 to put such construction upon contracts as they deemed 
 prudent men should make, rather than to interpret the con- 
 tract as they found it. But the more modern tendency of 
 the courts has been to so construe contracts as best to carry 
 out the intention of the parties, and not to assume to know 
 the business of the people better than the people know it 
 themselves. 
 
 In the case of "Wallis v. Smith, 2 Cotton, L. J., said : " I 
 quite agree with the master of the rolls, that the sounder 
 view to take is this : to leave people who are competent, and 
 
 1 2 Barn. & Ores. , 945 ; Sugden on 2 21 Chy! Div. , 266. 
 
 Vend. & Pur., oh. V, § 6; Chitty See, also, Printing and Numerical 
 
 on Contracts, 272, and Kent's Eegistering Co. v. Sampson, L. R., 
 
 Comm., vol. 2, p. 540. 19 Eq., 465. 
 
CHAP. I. J AUTHORSHIP OF STATUTE OF FRAUDS. ,19 
 
 under no disability, to make their own contracts, and then 
 to act on those contracts, whatever the true interpretation 
 might be, without assuming on behalf of the courts, either 
 of law or equity, to say, ' This is unreasonable and we will 
 make another and different contract between the parties. 
 They did not mean what they have said in their contracts.' " 
 
 § 20. Formerly, contracts seem to have been considered 
 of small importance compared with what they have since 
 assumed ; the real intention of the contracting parties was 
 held to be subservient to the particular form and ceremony. 
 But in later times, however, contracts are properly con- 
 strued, as far as practicable, to conform to the intention of 
 the parties, as gathered from the contract. Contractus legem 
 ex conventione acci/piunt. 
 
 § 21. The more modern interpretation of the seven- 
 teenth section has been broad ; and refined distinctions have 
 not been resorted to in order to bring a contract within its 
 operation. 
 
 Abbott, C. J. (afterward Lord Tenterden), as early as 1820, 
 held that the statute of frauds should be reasonably con- 
 strued. 1 Take a simple case wherein he rendered judgment. 
 Howe v. Palmer 2 was an action for an alleged breach of 
 contract in not accepting twelve bushels of winter tares. 
 The plaintiff was a grower of tares residing at Pergo. He 
 sent his nephew to Romford Market with a sample of his 
 
 1 Lord Tenterden evidently be- able ' into their terms. He so ap- 
 lieved with Bacon, that the office plied this word as in many in- 
 of the judge is jus dicere, and not stances to relax the severity of 
 jus dare, to interpret law and not legal rules, to mediate happily be- 
 to make law ; and to suppress force tween opposing maxims, and to 
 and fraud. He did not believe in give a liberal facility to the appli- 
 hard constructions or strained in- cation of the law by judges and 
 ferences. juries to the varying circumstances 
 
 Of the principles governing his of cases, which before had been 
 
 decisions Mr. Justice Talfourd, with brought into a single class." 4 
 
 discriminating praise, says : " The Camp. Lives of the Chief Justices, 
 
 chief peculiarity and excellence of 347. 
 
 his decisions consist in the frequent 2 3 Barn. & Aid., 321 ; Baldey v. 
 
 introduction of the word 'reason- Parker, 2 B. & Cres., 40 (1823). 
 
20 SALES. [CHAP. I. 
 
 tares. The defendant there verbally agreed to buy " twelve 
 bushels of tares at 11. per bushel ; " and to send to the 
 plaintiff's farm for them, declining at the time to take the 
 sample which was offered, but requested that the tares re- 
 main with the plaintiff until he wanted to sow them, which 
 was agreed to. The plaintiff's nephew, upon returning to 
 the plaintiff's granary, measured out the twelve bushels of 
 tares and set them apart, and gave orders that they be de- 
 livered to the defendant when he should call for them. 
 There was no memorandum in writing, nor anything paid 
 on account of the contract. The plaintiff had a verdict, 
 with liberty to the defendant to move to enter a nonsuit ; 
 a rule nisi having been obtained for that purpose. 
 
 Abbott, C. J., writing the opinion of the court, said, after 
 remarking that the statute of frauds is one of the most im- 
 portant and beneficial statutes to be found in the books 
 (quoting the seventeenth section), that there was no memo- 
 randum in writing of the contract and nothing given in 
 earnest or in part payment; "unless, therefore, the buyer 
 has accepted and received part of the goods so sold, this 
 case is within the statute, and no action can be brought." 
 He thought the case came within the very words of the 
 statute, to which full effect ought to be given, and not suffer 
 its beneficial provisions to be evaded by subtle distinctions. 1 
 
 Best, J., in the same case, thought the plaintiff was pre- 
 vented from recovering, both by the spirit and the letter of 
 the statute: " The spirit I take it to be this, that a contract 
 
 1 See Astey v. Emery, 4 M. & S., v. Stone, 1 Taunt., 458, in that the 
 
 262; Alexander v. Comber, 1 H. buyer directed expense to be in- 
 
 Bl. E., 20; Tempest v. Fitzgerald, curred; and the directing of that 
 
 3 Barn. & A., 680, and cases there expense was considered evidence 
 
 cited. The above case, Howe v. of an acceptance on his part ; there 
 
 Palmer, differs from Chaplin v. it was agreed that the horse should 
 
 Rogers, 1 East, 192, for there was be transferred from the sale to the 
 
 sufficient evidence in this case for livery-stable, and the expense was 
 
 the jury to draw the conclusion of paid by the purchaser for the keep, 
 
 an acceptance, inasmuch as the which could not be unless the horse 
 
 vendee had dealt with the hay as was supposed to have come into 
 
 his own. And differs from Elmore his possession. 
 
OHAP. I.] AUTHOKSHIP OF STATUTE OF FEAUDS. 21 
 
 shall not be binding unless there be some act done which 
 directly shows an acceptance on his part." 
 
 § 22. It has been held by a series of well-considered cases, 
 that the benefits under the statute of frauds will be most 
 effectually secured by rejecting refined distinctions, over- 
 looking the supposed equity of particular cases, and adher- 
 ing steadily to the language of the statute, as the best 
 exponent of the intention of the legislature. 
 
 A distinguished American judge said in an important 
 case, that the statute has required only contracts of sale to 
 be in writing, and that where work and labor has entered 
 in any material degree into the creation of the thing bar- 
 gained for, so as to make it doubtful whether it is a contract 
 of sale or not, courts are not called upon to find nice dis- 
 tinctions, or resort to rigid rules of interpretation that it 
 may be brought within the operation of the statute. Jus 
 summumscepe estmalitm is the observation of the Latin poet; 
 and on the authority of Lord Coke, the poets are cited as 
 authorities in expounding the law: Authoritates philosopho- 
 rum medicorum et jpoetarum sunt is causis allegandw et ten- 
 endm. 1 
 
 § 23. It has been truly said that statute law and com- 
 mon law originally flowed from the same fountain, the leg- 
 islature. Statute law is the will of the legislature. The 
 common law is nothing else but statutes worn out by time; 
 all our law begun by consent of the legislature ; and whether 
 it is now law bv usage or by writing, it is the same thing. 
 
 Sir Matthew Hale has observed that statute law, or acts 
 of parliament, are of two kinds: First, those statutes 
 which were made lefore time of memory; and secondly, 
 those statutes which were made within, or since, the time of 
 memory. 
 
 Statutes, or acts of parliament, which existed before the 
 beginning of the reign of King Eichard I. (1189), and never 
 
 IThe Passaic Manufacturing 118; Shindler v. Houston, 1 Com- 
 Conipany v. Hoffman, 3 Daly's R. stock (N. Y.), 266; Co. Lit., 264. 
 (N. Y. C. P.), 495; 11 Am. L. Reg., 
 
22 SALES. [CHAP. I. 
 
 repealed, are accounted part of the lex non scripta, and are 
 part of the common law ; that is, they are deemed to be "be- 
 fore time of memory. 1 
 
 The lex scripta, or acts of parliament, which were made 
 since the reign of Kichard I., are, in a legal sense, under- 
 stood to be written, or since time of memory. These are 
 called " old statutes," and are those statutes which were 
 passed between the time of Richard I., and Edward III. 
 What Sir Matthew Hale calls " new statutes " are those 
 statutes beginning with the reign of Edward III., and are 
 extant upon record, either in parliament rolls or in the 
 statute rolls of King Edward III., and those kings that 
 came after him. These acts and the petitions themselves, 
 for the most part, are supposed to be preserved and extant. 
 This brief survey may serve to rescue from forgetfulness 
 the line of demarcation between what is commonly under- 
 stood as the written and the unwritten law. 
 
 iCom. Dig., 4 vol., 334; 2 Bl. thew Hale's History of the Com- 
 
 Comra., 31 ; Lord Chief Justice Wil- mon Law by Runnington (1792) ch. 
 
 mot, in Collins v. Blantern, 2 Wils... I, 1 Kent, 472. 
 348, 1 Smith's L. C, 325; Sir Mat- 
 
CHAPTEE II. 
 
 OF CONTRACTS WITHIN AND CONTRACTS WITHOUT THE 
 STATUTE OF FRAUDS. 
 
 § 24. Of the changes wrought by the statute of frauds. 
 
 25. The statute of frauds of the several states. 
 
 . 26. Of bargain, sale and contract. 
 
 27. Construction of statutes. 
 
 28. What contracts fall within the operation of the statute of frauds ; 
 
 distinctions as to. 
 
 29. Contracts of sale of goods in existence and non-existence. 
 
 30. Rule of construction of contracts in Massachusetts and some 
 
 other states. 
 
 31. Illustration of the rule; Mixer v. Howarth. 
 
 32. Of the cases of Lamb v. Crafts, and Clay v. Yates. 
 
 33. Of contracts of sale and manufacture. 
 
 34. The same subject continued ; a Colorado case. 
 
 35. The case of Gardner v. Joy. 
 
 36. The case of O'Neil v. New York and Silver Peak Mining Com- 
 
 pany. 
 
 37. Sale, work and labor ; Finney v. Apgar. 
 
 38. The same subject continued. 
 
 39. The case of Meincke v. Falk. 
 
 40. When the contract is substantially for goods ; Pitkin v. Noyes. 
 
 41. Contract for goods when labor is to be bestowed. 
 
 42. The words " no contract for the sale of ;" constructions of. 
 
 § 24. The subject applicable to this treatise is the statute 
 of frauds, in relation to contracts for the sale of goods, 
 wares and merchandise; chattels and things in action; and 
 personal property generally. 
 
 The enactment of the statute of frauds wrought several 
 important changes in the common law. 
 
 It introduced a new rule of evidence. 
 
 It improved the methods of trade and commerce. 
 
 It has been a safeguard against perjury in the ordinary 
 transactions of business. 
 
24 SALES. [chap. II. 
 
 Under its influence, also, in the more modern interpreta- 
 tion of contracts for the sale of goods, chattels, etc., the 
 trend of the decisions has been to carry out the intention of 
 the parties. 
 
 Although much diversity of opinion has existed as to what 
 contracts fall within its operation, it may be said, after 
 ages of forensic discussion and judicial discrimination in 
 England and in this country, that where the language of 
 the statute of frauds is the same, the decisions are quite 
 reconcilable and harmonious. 
 
 § 25. The words of section 17 of the English statute of 
 frauds are in part as follows : " No contract for the sale of 
 any goods, wares or merchandises for the price of ten pounds 
 sterling." Lord Tenterden's act substituted the word value, 
 in place of the word " price." l 
 
 The language of the statute of frauds of several states is 
 the same, and in others is similiar to the English statute. 
 
 For instance, in Arkansas, Georgia, Massachusetts, Maine, 
 Maryland, Michigan, Missouri, New Hampshire, New Jersey, 
 South Carolina and Vermont, the language of the statute 
 is, "Contract for the sale of goods, wares and merchandise." 
 
 In Arizona, Dakota, California, Minnesota, Montana, 
 Nebraska, Nevada, New York, Wisconsin and Wyoming 
 territory, the words, " Contract for the sale of goods, chat- 
 tels or things in action," are used. The section of the 
 statute of frauds of Alabama, which also contained the 
 same language, was repealed in 1862. 
 
 In Connecticut, Iowa and Oregon, the words are, "Agree- 
 ment for the sale of any personal property ; " while in In- 
 diana, the words "Contract for the sale of any goods ; " and 
 in Florida, the words " Personal property, goods, wares or 
 merchandise," are used in the statute of frauds. 
 
 i In 9 Geo. 4, oh. 14, sec. 7. In (Wis.), 271 ; Cason v. Cheely, 6 
 
 the following cases, Lord Tenter- Ga., 554. In Robertson v. Vaughn, 
 
 den's act is referred to as being de- 5 Sandf., 1, the expediency of such 
 
 claratory of the statute of frauds : a statute was urged ; but see Sew- 
 
 Hardell v. McClure, 1 Chand. all v. Fitch, 8 Cow., 215. 
 
CHAP. II.] CONTRACTS STATUTE OF FEATJDS. 25 
 
 § 26. In general, the word " bargain " denotes the terms 
 upon which a sale is made ; and " sale " expresses or im- 
 plies the completion of the bargain and the transfer of the 
 property from one person to another. A contract for the 
 sale of goods, wares or merchandise is an agreement or 
 covenant between two or more persons, in which each 
 party thereto binds himself to do or forbear some act, and 
 each acquires a right to what the other promises; a mutual 
 promise. All this implies persons able to contract; their 
 mutual assent; property to be contracted for, and a price 
 for the same, to be paid in money. 1 
 
 Money in some form has been used in all civilized nations 
 from a very early period. Thus, for instance, it is said that 
 " four hundred shekels of silver, current money with the 
 merchant," was paid for the field of Machpelah (Genesis, 
 chapter xxiii, verses 16, 17). 
 
 In the construction of contracts the intention of the par- 
 ties is to be sought for, over and beyond the mere form of 
 the words used. 
 
 Under the English decisions, the word " bargain," in the 
 seventeenth section of the statute of frauds, is construed 
 as not requiring as strict a statement of the transaction 
 necessary as the word " agreement " in the fourth section. 2 
 
 § 27. One cardinal rule, which those who legislate on 
 the common business of life ought always to bear in mind, 
 says Mr. Justice Stephen, is that the power of law to con- 
 trol conduct is small, and is constantly exaggerated. 3 
 
 Law.s ought to be adjusted to the habits of society, and 
 not to aim at remoulding them. The cases in which any 
 law is actually enforced are infmitesimally small in number 
 
 1 Bigler v. Hall, 54 N. Y., 167; another, and by which the other 
 
 Morse v. Sherman, 106 Mass., 430; promises to pay a price for such 
 
 2 Kent's Com., 449. Mr. Justice goods when they are made, is a 
 
 Stephen, in the Law Quarterly Re- contract for the sale of goods." 
 
 view, for January, 1885, submits ^Egerton v. Matthews, 6 East, 
 
 the following definition of a con- 307. 
 
 tract: "A contract by which one 3 Law Quarterly Review, Janu- 
 
 person promises to make goods for ary, 1885. 
 
26 SALES. [CHAP. II. 
 
 in comparison with those in which it has no effect whatever. 
 Custom, and what is called common sense, regulate the 
 _ great mass of human transactions. 
 
 In seeking to reach the intention of the legislature as to 
 what contracts are embraced under the words goods, wares 
 and merchandise, and chattels, and things in action, a re- 
 view of some of the early authorities will be found useful. 
 For, as Lord Coke somewhere says, great regard should be 
 paid to the construction which the sages of the law, who 
 lived about the time a statute was made, put upon it,, be- 
 cause they were best able to judge of the intention of the 
 makers at the time when it was made. Contemporanea ex- 
 positio est optima et fortissimo, in lege. 
 
 Under the well established authorities, it may be said, in 
 construing the language of any statute, the intention of the 
 law makers is to be sought for. This is the grand 'central 
 light by which all statutes should be read. And the cognate 
 rule runs through all the cases, that a statute is to be so 
 construed as to give sense and meaning to every part. 1 
 
 § 28. In general the cases have drawn three distinctions 
 in relation to contracts for the sale of goods, chattels and 
 personal property generally: 1st. Contracts which are en- 
 tirely executory ; 2d. Contracts for a merchantable article 
 not in existence, but which the vendor is to manufacture 
 and deliver at a stated time and price; and 3d. Contracts 
 for the making of an article where the vendor is to blend 
 together his compensation for labor, skill and materials so 
 that they cannot be discriminated. 
 
 Cases arising under the second class, declared within 
 the statute, fall more directly within w.hat may be called 
 the Massachusetts and English rule. The same rule in ef- 
 fect obtains in Wisconsin and New Jersey. 
 
 J Ewing v. Bennet, 11 Peters R., Hun, 559; Lake Shore & Mich. S. 
 
 41; Gyger's Estate, 65 Penn. St., R'y Co. v. Roach, 80 id., 339: Cush- 
 
 311 ; People v. N. Y. & Manhattan ing v. Worrick, 9 Gray, 382 ; Lude- 
 
 Beach R'y Co., 84 N. Y.. 565; Eys- wig v. Parker, 4 Abb. N. C, 246; 
 
 ton v. Stndd, 2 Plow., 465 ; Brown Innes v. Purcell, 2 Supm. (T. & C), 
 
 v. Clark, 77 N. Y., 369, afl'g 16 538. 
 
CHAP. II.] CONTRACTS STATUTE OF FRAUDS. 27 
 
 The decisions of New York and some other states quite 
 uniformly hold that the words of the statute mean goods 
 in solido at the time the contract is made. Executory con- 
 tracts are now uniformly held to be within the statute of 
 frauds, though some of the early English cases held that 
 they were not. One of the earliest cases involving this 
 question was Bennett v. Hull. 1 There the defendant agreed 
 to deliver to the plaintiff, on board his vessel, one hundred 
 barrels of apples, and then to be paid for. On appeal from 
 the judgment in favor of the plaintiff, it was held that the 
 case was clearly within the statute; that the statute applied 
 as well to executory as to other contracts. The court de- 
 clared that the sound and just construction of the statute 
 of frauds was enunciated in Rondeau v. "Wyatt, 2 and in 
 Cooper v. Elston. 3 
 
 On the other hand, some cases have held that, where the 
 contract is for the manufacture of an article, and work is 
 to be bestowed upon it to complete it according to the con- 
 tract, it is without the statute. 4 Contracts arising under 
 the third class are uniformly held to be without the statute 
 of frauds. 
 
 § 29. "When the contract is for the sale of goods, or an 
 article in existence, there is, nautically speaking, deep water 
 and clear sailing; but it is in the "border cases," so-called, 
 where the courts encounter breakers, — experience embar- 
 rassment. 
 
 If the contract be for the manufacture of an article upon 
 a special order, as already indicated, and the essence of the 
 contract is the particular skill which the manufacturer pos- 
 sesses, or is supposed to possess, it is for work and labor, 
 and not within the statute of frauds. 5 It is well said in 
 
 i 10 John., 364 (18131. (1878); Frank v. Harrington, 36 
 
 2 2H. Bl., 63. Barb., 415; Smith v. N. Y. C. R. 
 
 3 7 Term R, 14. B. Co., 41 N. Y., 620. 
 
 *Sewall v. Fitch, 8 Cow., 215 sQoddard v. Binney, 115 Mass., 
 
 (1828) ; Parsons i'. Louoks, 48 N. Y., 450; Hight v. Ripley, 19 Me., 137 
 
 19 (1871), 216, and cases there cited ; (1841) ; Ferren v. O'Hara, 62 Barb., 
 
 Higgins v. Murray, 73 id., 252 517 (1862); Abbott v. Gilchrist, 38 
 
28 sales. [chap. ir. 
 
 Eogers v. Stevenson,* that an agreement legal and action- 
 able before the statute of frauds was passed is legal and 
 actionable still; for the statute simply introduced a new 
 rule of evidence. But in some states the statute declares 
 the contract " void " unless it complies with the statute of 
 frauds. 
 
 § 30. The rule applicable to contracts for the sale of 
 goods, wares and merchandise as established by the decis- 
 ions of Massachusetts, New Jersey, 'Wisconsin and some of 
 the other states, is in effect as follows : If the articles to be 
 manufactured under the contract will, at the time agreed 
 upon for ' their delivery, constitute what may be denom- 
 inated marketable commodities, the contract is of sale. 
 
 In this regard the English decisions are in accord. 
 
 The real test, however, in those states, whether the con- 
 tract is one of sale or for work and labor, does not depend 
 upon the existence or non-existence of the article at the 
 time the contract is made, but whether the manufacturer 
 produces the article in the usual course of his business, as 
 contradistinguished from a manufacture under a special 
 order. Contracts falling within the former class are 
 deemed contracts of sale ; those under the latter class are 
 held to be contracts for work and labor, and not affected by 
 the statute of frauds. 
 
 § 31. The decision of Chief Justice Shaw in the early 
 case of Mixer v. Howarth 2 is probably the most authorita- 
 tive, if not the earliest, expression of the Massachusetts rule. 
 The plaintiff was a carriage-maker. The defendant, at 
 Mixer's shop, selected the style of carriage he wanted. The 
 body of the carriage in question was in nearly a finished 
 condition, but it had to be lined and completed in other re- 
 spects. Mixer proceeded to line and finish the carriage as 
 
 Me., 260; Crockett v. Soribner, 64 109; Downs v. Ross, 23 Wend. (N. 
 
 id., 447; Prescott v. Locke, 51 N. Y.), 270. 
 
 EL, 98; Gorhani v. Fisher, 30 Vt., U6 Minn., 68. 
 
 .428 ; Smith v. Fisher, 3 N. E. Rep., 2 21 Pick,, 205 (1838;. 
 824; Phipps v. McFarlane, 3 Minn., 
 
CHAP. II.] CONTRACTS STATUTE OF FRAUDS. 29 
 
 ordered, and when it was ready for delivery he gave notice 
 of the fact to Howarth with the request that he would take 
 the carriage away, but he refused to accept it. 
 
 On substantially these facts the court decided that no 
 property passed to the defendant; that the carriage con- 
 templated to be sold did not then exist; that it was to be 
 constructed from materials, partly wrought indeed but not 
 put together. " It was, therefore, essentially an agreement 
 by the defendant with the plaintiff to build a carriage for 
 him," said the court, "and on his part to take it when 
 finished and pay for it at an agreed, or at the reasonable, 
 value. This is a valid contract, and made on a good con- 
 sideration, and therefore binding on the defendant. But 
 it was not a contract of sale, within the meaning of the 
 statute of frauds, and therefore need not be proved by a 
 note in writing." The learned chief justice there declared 
 the rule to be that, when the contract is for an article then 
 existing, or such an article as the vendor " usually has for 
 sale in the course of his business, the statute applies." . . . 
 " But where it is an agreement with a workman to put 
 materials together and construct an article for the employer, 
 whether at an agreed price or not, though in common par- 
 lance it may be called a purchase and sale of the article, to 
 be completed in the future, it is not a sale until an actual 
 or constructive delivery and acceptance." Harris, J., in 
 the same case, thought a still more accurate criterion would 
 be to inquire whether the work and labor required in order 
 to prepare the subject-matter of the contract for deliv- 
 ery was to be done for the vendor or for the vendee. If 
 for the former, it would be a contract of sale; if for the 
 latter, a contract of hiring. 
 
 § 32. In Lamb v. Crafts, 1 the same court enunciated the 
 doctrine of Mixer v. Howarth, namely, that if the article 
 to be manufactured is such as is habitually being made, it 
 is a contract of sale. 
 
 1 12 Met., 356 (1847). 
 
30 SALES. [CHAP. II. 
 
 This conclusion is said to have been deduced from some 
 observations of Abbott, C. J., in Garbutt v. "Watson; 1 but 
 an able writer on sales has declared that it does not rest 
 upon any " satisfactory principle." 2 
 
 Embarrassment was expressed by Mr. Justice Story in 
 applying the rule. But, he says, that where the labor and 
 service are the essential considerations, as in the case of the 
 manufacture of a thing not in esse, the contract would 
 not be within the statute; where the labor and service 
 are only incidental to a subject in esse, the statute would 
 apply. 3 
 
 A similar rule was enunciated by Pollock, C. B., in Clay 
 v. Yates, 4 but it was rejected in Lee v. Griffin. 5 
 
 The doctrine, however, seems to be recognized in some 
 cases in JSTew Hampshire and Wisconsin. 
 
 Pollock. C. B., says: " It seems to me the true rule is this: 
 Whether the work and labor is of the essence of the con- 
 tract, or whether it is the materials that are found; my im- 
 pression is that in a case of a work of art, whether it be 
 silver or gold, or marble or common plaster, that is a case 
 of the application of laborof thehighcst description, and the 
 materials is of no sort of importance compared with the 
 labor, and, therefore, that all this would be recoverable as 
 work and labor, and materials found. ... I am rather 
 inclined to think that it is only where the bargain is merely 
 for goods thereafter, to be made, and not where it is a 
 mixed contract of work and labor, and materials found, 
 that the act of Lord Tenterden applies." 
 
 § 33. Notwithstanding the infinitely various shades of 
 contracts, and the difficulty of disposing of the questions 
 which arise in regard to them, there does not seem to be any 
 considerable uncertainty in the rule of construction as fol- 
 lowed in Massachusetts and some of the other states. 
 
 1 5 B. & A., 613. 4 1 Hurl. & N., 73 (1856) ; 25 L. J. 
 
 2 Benjamin on Sales, § 109. Ex., 237. 
 
 3 Story on Sales, § 260; Low v. *1 B. & S., 272. See, also, Ben- 
 • Andrews, 1 Story R,, 38. jamin on Sales, 106. 
 
CHAP. II. J CONTRACTS STATUTE OF FRAUDS. 31 
 
 In the quite recent case of Godclard v. Binney, 1 Ames, 
 J., said : 
 
 " A contract for the sale of articles then existing, or such 
 as the vendor in the ordinary course of his business manu- 
 factures, or procures for the general market, whether on 
 hand at the time or not, is a contract for the sale of goods 
 to which the statute applies. But on the other hand, if the 
 goods are to be manufactured especially for the purchaser, 
 and upon his special order, and not for the general market, 
 the case is not within the statute." 
 
 The special subject of inquiry there seems to have been 
 whether or not a. personal element entered into the contract. 
 The Massachusetts rule has been criticised as giving to the 
 words " contract for the sale of goods," etc., a meaning 
 which the law makers could never have intended. 
 
 § 34. In The Sloan Saw Mill and Lumber Company v. 
 Guttshall, 2 touching the subject of sale and manufacture, 
 the court, A. "W". Stone, J., observes, that the distinction 
 between contracts for an article to be entirely manufact- 
 ured, and an article already existing, but to be fitted for 
 delivery by the application of work and labor, " has received 
 different constructions by the courts in this country and 
 England." 
 
 " In many recent authorities," he says, " it has been held 
 that when the purchase is of articles, such as the vendor regu- 
 larly manufactures from time to time, and has for sale in 
 the ordinary course of business, the contract is held to be 
 within the statute; but if he manufactures to order, out of 
 materials in his possession, it is not within the statute." 
 
 The above opinion is quite in accord with the decisions 
 of "Wisconsin, New Jersey and Massachusetts, and some of 
 the English cases. 
 
 § 35. Take, also, the important case of Gardner v. Joy, 3 
 which elicited a wide discussion. 
 
 1 115 Mass.. 450 ; Brown v. Allen, 2 3 Col., 14. 
 35 Iowa, 306; Crockett v. Scribner, 39 Met. (50 Mass.), 179. 
 64 Me., 447; Clark v. Nichols, 107 
 Mass., 547. 
 
32 SALES. [OHAP. II. 
 
 There the contract was for the purchase of one thousand 
 boxes of candles at a stated price, which the vendor agreed 
 to manufacture and deliver in about three months from the 
 date of the contract. 
 
 Shaw, C. J., decided this to be a contract of sale. He 
 rested his judgment principally upon the ground that the 
 goods bargained for were such as the vendor ordinarily 
 manufactured for the market. lie reiterated the doctrine 
 which he had announced in a case nearly ten years before, 
 to the effect that, if it is a contract to sell and deliver goods, 
 whether they are then completed or not, it is within the 
 statute of frauds. But if it is a contract to make and deliver 
 an article, or quantity of goods, it is not within the statute. 
 
 § 36. The case of O'Neil v. New York and Silver Peak 
 Mining Company, 1 a Nevada case, also illustrates the prin- 
 ciple as to what will constitute a contract of sale. The 
 action was brought to recover the price of certain brick 
 alleged to have been manufactured for the defendant. [An 
 attachment was issued in the case, but that has no impor- 
 tance in this connection.] The manufacture of the brick 
 was at a place, and out of clay selected by the defendant's 
 agent. Beatty, C. J., truly observes that there has been 
 considerable conflict of authority as to what particular con- 
 tracts are to be deemed of sale and what of manufacture. 
 
 " For instance," he says, " if a miller, engaged regularly 
 in the manufacture of flour, should contract to deliver the 
 next hundred barrels of flour he may manufacture, it is 
 rather difficult to determine whether such a contract is to 
 be treated as a contract to manufacture one hundred bar- 
 rels of flour, or a contract to sell one hundred barrels. 
 Probably if the contract did not induce any change in the 
 conduct of the miller, but he merely proceeded with his 
 regular business, intending, under his contract, to deliver or 
 sell the first product of his mill, this should be treated as a 
 sale, because the manufacturer has not changed his condi- 
 tion, business or circumstances, on account of the contract." 
 
 1 3 Nev., 141. 
 
CHAP. II.] CONTRACTS STATUTE OF FRAUDS. 33 
 
 This is substantially the doctrine of the English and 
 Massachusetts decisions. 
 
 " But," continues the learned chief justice, " if he had 
 contracted to manufacture and deliver some peculiar article 
 out of the regular routine of his business, for instance, a 
 hundred barrels of kiln-dried corn meal, requiring the pur- 
 chase of new material and the introduction of new appli- 
 ances for the drying of the, corn, this undoubtedly would, 
 under all the decisions, be held a contract not merely for 
 the sale but rather for the manufacture of the corn meal, 
 and not within the statute. So, too, this contract to manu- 
 facture brick, not at a regular brick-yard of the plaintiff, but 
 a spot selected by the defendant, was a contract not of sale 
 but of manufacture." 
 
 It appeared in the case that the plaintiff placed in the 
 kiln more brick than would fill his contract ; but the court 
 declared that this fact made no difference. 
 
 The case not falling within the provisions of section 62 
 of the act in regard to conveyances, etc., the judgment of 
 the court below was affirmed. Lewis, J., concurred in the 
 conclusion as to the contract being one of manufacture and 
 not of sale. 
 
 § 37. An important case in New Jersey, as to what will 
 constitute a sale of goods, within the operation of the stat- 
 ute of frauds, is Finney v. Apgar. 1 The action arose out of 
 a contract for the sale of certain spokes, to be gotten out 
 by the plaintiff, for the defendant, and to be delivered at a 
 stated place. After they were delivered the defendant re- 
 fused to accept them. The court decided, after an ex- 
 haustive examination of the cases, that a contract for the 
 sale of goods which is purely executory is as much within 
 the statute as is a contract to be executed in presenti. If 
 the article does not exist in solido at the time of the con- 
 tract, in effect, said the court, but is to be made upon a 
 special order, and is an article distinguished from that of 
 
 131 N. J. Law, 271; 2 Vroom, 2 Zab., 196; Mead v. Case, 33 Barb., 
 266 ; but see Parsons v. Woodward, 202. 
 3 
 
34: SALES. [CHAP. II. 
 
 the ordinary business of the maker, such contract is, in sub- 
 stance and effect, for work and materials, and not within 
 the statute of frauds. 
 
 It was suggested in a well-considered case, 1 that the first 
 of the above rules is now received everywhere with entire 
 judicial unanimity. With regard to the second rule, some 
 conflict of opinion exists. But it is to be recommended by 
 its evident consonance with the object of the statute, as 
 well as by the decided weight of authority. In Finney v. 
 Apgar the contract was held to be a sale, and within the 
 statute of frauds. 
 
 § 38. Again, take the case of Prescott v. Locke. 2 There a 
 contract was made for walnut spolies, up to one hundred 
 thousand, which the plaintiff agreed to saw and deliver at 
 his mill, at the price of $40 per thousand, in lots of ten 
 thousand each, the defendant to have the right to select 
 them at the plaintiff's mill. The court, evidently resting 
 their decision upon the doctrine enunciated in Pitkin v. 
 Noyes, 3 and Grilman v. Hill, 4 held that this was a contract 
 of sale. That the contract when carried out would result 
 in a sale of goods, and therefore the action could not be 
 for work and labor as such. But it was held, following in 
 the line of some of the English decisions, that if the result 
 of the contract be that the party has done work which ends 
 in nothing that can become the subject of sale, the party 
 cannot maintain an action for goods sold and delivered. 
 
 And in Cummings v. Dennett, 5 "Whitman, J., said : " It 
 is very clear that if application is made to a mechanic or 
 manufacturer, for articles in his line of business, and he 
 undertakes to prepare and finish them in a given time, such 
 a contract, though not in writing, is not affected by the 
 statute of frauds. 
 
 iMeincke v. Falk, 55 Wis., 427 5 26 Me., 401. See Abbott v. Gil- 
 
 (1882). Christ, 38 Me. , 260 ; Picket v. Swift, 
 
 2 51 N. H., 94. 41 id., 68; Edwards v. Grand 
 
 3 48 N. H., 294. Trunk R'y, 48 id., 379; 2 Parsons 
 * 36 N. H., 311. on Cont., 334 and note. 
 
CHAP. II.] CONTRACTS — STATUTE OF FRAUDS. 35 
 
 § 39. The plaintiff, in Meincke v. Falk, 1 was a manufact- 
 urer of carriages. The defendant's intestate, through his 
 agent, ordered a family carriage to be made at a price not 
 to exceed $900, and to be finished at a given time. The 
 plaintiff made the carriage according to the order given. 
 The intestate refused to accept it. It did not appear in the 
 case whether the materials from which the carriage was 
 made were then in stock in the plaintiff's factory, or were 
 procured by him for the purpose. It was, however, proved 
 that the intestate gave the order for the carriage according 
 to a model selected by him; that in so doing he intended to 
 have the carriage of the particular manufacture of the 
 plaintiff; that his skill and workmanship were the special 
 inducement for giving the order"; and that otherwise the 
 carriage would never have been made. 
 
 The particular make of carriage was not kept by the 
 plaintiff for sale in his stock. 
 
 Judgment was rendered for the plaintiff; the defendant 
 appealed. 
 
 The decision of the appellate court seems to be based 
 upon Goddard v. Binney, 2 holding that the case was with- 
 out the statute of frauds. Cassoday, J., said : '• It may be 
 well to observe that if we were to apply the rule adopted 
 in JSTew York of existence in solido or non-existence, as the 
 only test, and if the facts were that the carriage in question 
 was such as the plaintiff was then accustomed to manufact- 
 ure and keep in stock for general sale, and that this car- 
 riage would have been manufactured by the plaintiff without 
 any order from Falk, yet it would be without the statute, 
 because it was not in existence in solido at the time of mak- 
 ing the contract. But such assumed facts would bring the 
 case within the statute, under the rule adopted in Massa- 
 chusetts, since it is there in effect held that if in the or- 
 dinary course of business r,he article would have been 
 manufactured or procured for the general market by the 
 
 i 55 Wis., 427; Alb. Law Jour., 2 115 Mass., 450. 
 510; 13 Nor. West Rep., 545. 
 
36 SALES. [CHAP. II. 
 
 vendor, in the absence of any special order or contract with 
 the vendee, then it is a ' contract for the sale of ' the article, 
 and not a contract for skill, labor or workmanship in pro- 
 ducing the article." 
 
 As is shown in another chapter, the early English decis- 
 ions have held that the statute in no case extended to execu- 
 tory contracts of sale, but only to contracts which were 
 capable of being executed immediately. But that doctrine 
 was subsequently overruled in that country and disap- 
 proved in Massachusetts, New Jersey, Maine, and some of 
 the New York cases. But it was so far adopted in some of 
 the other New York cases, says the court, as to hold that 
 if the thing contracted for is not in existence at the time, 
 then it cannot come within the statute, notwithstanding it 
 may, in the language of the act, be a " contract for the sale " 
 of the article, and in no sense a contract for skill, labor or 
 workmanship. 
 
 "We are inclined to think," continues the learned judge, 
 " that the rule announced by Chief Justice Shaw, in Mixer 
 v. Howarth, 1 and followed in Goddard v. Binney, 2 supported 
 as it is by the New Jersey, Maine, and some of the New 
 York cases, is in substantial harmony with the rule as finally 
 settled in England prior to their recent statute^ and hence 
 is entitled to our confidence 'and respect. We therefore 
 hold that, while an executory contract for the sale of an 
 article for the price of $50 or more may be within the stat- 
 ute, notwithstanding such article does not at the time exist 
 in solido, yet where such contract is to furnish materials and 
 manufacture the article according to specifications furnished 
 or a model selected, and when without the special contract 
 the thing would never have been manufactured in the par- 
 ticular manner, shape, or condition it was. then the contract 
 is essentially for special skill, labor, or workmanship, and is 
 not ivithin the statute." 
 
 § 40. It has been held in New Hampshire and some other 
 states that if the contract is for an article coming under the 
 
 1 21 Pick., 207. 2 115 Mass., 450. 
 
CHAP. II. J CONTRACTS STATUTE OF FRAUDS. 37 
 
 denomination of goods, etc., the quantity and price being 
 agreed upon, it is a contract of sale, notwithstanding the 
 subject-matter does not exist at the time, but is to be con- 
 verted into goods afterward by the vendor. But, if what 
 is contemplated by the contract is the peculiar skill and 
 labor of the maker, and these elements enter into the essence 
 of the contract, it is without the statute of frauds. Thus, 
 in Pitkin v. 'Koyes, 1 where the defendant agreed to raise 
 three acres of potatoes and deliver them to the plaintiff at 
 a certain price per bushel, Bellows, J., said : " If a person 
 contracts to manufacture and deliver at a future time cer- 
 tain goods, at prices then fixed, or at reasonable prices, the 
 essence of the' agreement being that he will bestow his own 
 labor and skill upon the manufacture, it is held not to be 
 within the statute. If, on the other hand, the bargain be 
 to deliver goods of a certain description at a future time, 
 and they are not existing at the time of the contract, hut 
 the seller does hot stipulate to manufacture them himself, or 
 procure a particular person to do so, the contract is within 
 the statute." 
 
 In the one case the buyer has the right to require him to 
 do it, and cannot be compelled to take one as good, or oven 
 better, if made by another ; while in the other case the 
 seller only agrees to sell and deliver the article, and is un- 
 der no obligation to make it himself, but may purchase it of 
 another. 
 
 In substance, he further said, that if the contract be sub- 
 stantially for the goods it is within the'statute whether they 
 are then manufactured or not; but it is otherwise if the 
 contract be to manufacture and deliver the goods, that is, 
 if the labor and skill of the seller are stipulated for, and 
 make part of the contract. 
 
 It is quite obvious that the labor and skill of a workman 
 may be bargained for in this way as well as in any other, 
 
 148N. H.,294. See, also, Hight enunciated in Hight v. Ripley, 
 v. Ripley, 19 Me., 137; Picket v. supra, is recognized as sound by 
 Swift, 41 id., 68. The doctrine as Parsons on Contracts, 2d vol., 334. 
 
38 SALES. [chap. II. 
 
 his compensation being in the price of the article he makes; 
 and " the only question in this particular case is whether the 
 skill and labor of that workman were especially contracted 
 for, so that the employer was entitled to that, and could be 
 obliged to take no other. 
 
 " In many cases, then, there could be no difficulty in deter- 
 mining whether the labor and skill of the particular person 
 were of the essence of the contract, or whether they were, 
 in the contemplation of the parties, substantially a sale." 
 
 § 41. But in Atwater v. Hough, 1 which case arose out 
 of a contract to deliver one hundred sewing machines, of a 
 particular make, at a specified time and place, and that a part 
 of them not then completed should be finished within the 
 time agreed, by a person who worked in the vendor's shop, 
 and with his materials, was held to be a contract of sale and 
 not for the manufacture of the machines. 
 
 The court holding that even if it were otherwise as to the 
 part not finished, sixty-four in number, yet, as the contract 
 was entire, and as it was clear that in respect to the thirty- 
 six machines which were completed it was a sale, the whole 
 must be regarded as within the statute of frauds. 
 
 In Partridge v. Wilsey, 2 where the plaintiffs, doing busi- 
 ness in New York, and the contract was that the goods were 
 to be shipped by them immediately, to the defendant at 
 Keokuk, Iowa, by express, and that money and labor must 
 necessarily be expended in procuring them, held not suffi- 
 cient to take the case out of the statute of frauds. 
 
 § 42. It has, in effect, been well said by an accurate 
 writer, that the American courts appear to have groped 
 steadily along by the light of the English precedents, some 
 halting by the way, others passing on. The fact that the 
 decisions are quite irreconcilable has resulted mainly from 
 this fact: that the courts, in the earlier history of the stat- 
 ute of frauds, sought to circumscribe its meaning and to 
 
 1 29 Conn. R., 508. See, also, Allen Garbutfc v. Watson, 5 Barn. & Aid., 
 v. Jarvis, 20 id., 38 ; Eichelberger 613. 
 v. McCauley, 5 H. & John., 213; 2 8 Iowa, 461. 
 
CHAP. II. J CONTRACTS STATUTE OF FEAUDS. 39 
 
 give it a strict construction. The words " no contract for 
 the sale of " seem to admit of at least the following inter- 
 pretations : 
 
 If the articles bargained for do not exist in specie, but 
 are to be manufactured, there is no contract of sale, on the 
 theory that there is no sale, strictly speaking, within the 
 intent of the statute of frauds until the parties to the con- 
 tract are ad idem upon an existing subject-matter. If the 
 contract be for goods existing, or goods not existing, but 
 which in effect is for goods to be sold and delivered, and 
 not for work, labor and materials, and which when com- 
 pleted will result in the sale of goods or chattels for a price, 
 it constitutes a contract of sale. 
 
 Midway between these extremes, says Mr. Schouler in his 
 admirable work on personal property, stands the Massachu- 
 setts rule, which, while admitting discrepancies, brings more 
 of the earlier and later cases into good fellowship than any 
 other yet put forward ; but the objection is that it distorts 
 the legislative expression. 1 
 
 1 Schouler on Per. Prop., 443. 
 
CHAPTER III. 
 
 OF CONTRACTS "WITHIN THE STATUTE OF FRAUDS — RULE 
 ■ OF CONSTRUCTION OF CONTRACTS IN NEW YORK AND 
 SOME OTHER STATES. 
 
 § 43. "What contracts deemed not to be of sale. 
 
 44. "What contracts are deemed of sale. 
 
 45. An illustration of the New York rule; the case of Downs v. 
 
 Ross. 
 
 46. The same subject continued. 
 
 47. Another illustration ; Cooke v. Millard. 
 
 48. The same subject continued. 
 
 49. A distinction on the same subject. 
 
 50. Distinction between a sale and a manufacture. 
 
 51. A sale ; subject-matter to be in substantial existence. 
 
 52. Rule adopted in the Passaic Manufacturing Company v. Hoffman. 
 
 53. The same subject continued. 
 
 54. Manufacture or sale ; a close case ; Mead v. Case. 
 
 55. The same subject continued; a dissenting opinion by Smith, J. 
 
 56. The same subject continued. 
 
 57. The same subject ; a Canada case. 
 
 58. Contract where part of goods delivered and paid for. 
 58a. The same subject continued. 
 
 59. Where goods sold are not in existence. 
 
 60. A sale where goods are partly in existence. 
 
 61. Another illustration ; Fitzsimmons v. Woodruff. 
 
 62. Simple contract to deliver invalid. 
 
 63. A contract which must be in writing cannot be modified by 
 
 parol. 
 
 64. Contract for goods in solido not converted into a contract for 
 
 work and labor by vendor doing work on the goods. 
 
 65. Distinction drawn between different kinds of contracts. 
 
 66. The same subject continued. 
 
 67. The case of Bird v. Muhlenberg. 
 
 68. Another illustration on kinds of contracts. 
 
 69. Reference to several cases on the same general subject. 
 
 70. The case of Pawelski v. Hargreaves ; a good illustration and a 
 
 safe rule. 
 
 71. It is the province of the jury to determine as to performance of a 
 
 contract. 
 
CHAP. III.] CONTRACTS WITHIN STATUTE OF FRAUDS. 41 
 
 § 43. The essentials of contracts affected by the statute 
 of frauds, and the interpretation such contracts have re- 
 ceived in Massachusetts and some other states, have already- 
 been shown. A construction different from either of those 
 mentioned is followed by the decisions of New York and 
 some of the other states. 
 
 The rule may be stated as follows : If the subject-matter 
 of the contract be not in existence at the time the contract 
 is made, but has to be manufactured, for example, flour 
 from wheat not yet ground ; or nails to be made from iron 
 to be supplied by the manufacturer; or paper to be manu- 
 factured from rags to be supplied by the vendor, — in all 
 such cases the contract is held to be not one of sale. 
 
 In other words, the subject-matter contracted for must be 
 in substantial existence at the time the contract is made. 1 
 
 § 44. The weight of the more recent authorities is that, 
 if the articles are in existence at the time of the contract, 
 notwithstanding they may have been ordered of a vendor 
 who is to do certain work upon them to suit the wants of 
 the vendee, it is a sale. 
 
 It was declared by an able jurist, in an important case, 
 that there ought to be but the single distinction, and that 
 between existing and non-existing chattels. But under such 
 a rule there would still arise what may be termed " border 
 cases," where it would be difficult, if not quite impossible, 
 to draw the line of distinction. 
 
 In a word, the rule is recognized between a contract for the 
 sale and delivery immediately, or at a future day, of an ar- 
 ticle then existing, and a contract to sell and deliver an 
 article not then manufactured, but to be made afterward. 
 A contract of the former class is within the statute of 
 frauds ; the latter is not. 
 
 § 45. Although the case of Downs v. Koss 2 falls very near 
 the line, it is a good illustration of the New York rule. 
 
 1 Cases illustrative of these rules Millard, 5 Lans. (N. Y.), 246; aff'd, 
 
 are Parsons v. Loucks, 48 N. Y., 19 ; 65 N. Y, .352. 
 
 Sewall v. Fitch, 8 Cow., 215 ; Parker 2 23 Wend. (N. Y.), 370, Monell, 
 
 v. Schenck, 28 Barb., 38; Cooke v. J. (1840). 
 
42 ' SALES. L CHAP - ln - 
 
 The decision was a step in advance of all previous cases. 
 There, the plaintiff's authorized agent, August 30, 1836, con- 
 tracted verbally with the defendant, at Elmira, for the pur-, 
 chase of certain wheat. The defendant had about two 
 hundred and fifty bushels then in his granary, and was 
 threshing more. The bargain was for about seven hundred 
 bushels, at ten shillings a bushel, which the defendant agreed 
 to deliver September 5th, at Westlake's Basin, on the Che- 
 mung Canal feeder. The wheat was to be paid for on de- 
 livery. The threshed wheat in the granary, which comprised 
 a part of the wheat under the contract, was not well cleaned, 
 and the defendant agreed further to clean it. 
 
 There was no writing, no money paid, nor any wheat 
 delivered at the time of the making of the contract. 
 
 On the day for its delivery, wheat having advanced in 
 price, the defendant refused to fulfil his contract. 
 
 This action was brought to recover damages resulting 
 therefrom. In the court below, the defendant claimed that 
 the contract, in whole or in part, was within the statute of 
 frauds, and therefore void, and moved for a nonsuit. This 
 was denied. 
 
 §46. There was conflicting evidence as to the terms of 
 the contract, and also as to misrepresentations on the part 
 of the plaintiff's agent. 
 
 The trial judge charged the jury that the contract was 
 not within the statute of frauds; that it was a contract for 
 work and labor. 
 
 A new trial was granted. On appeal Bronson, J., ob- 
 serves : " It is said that this was, either in whole or in part, 
 a contract for work and labor, and so not within the statute. 
 But I think it was neither more nor less than a contract 
 of sale; and if we are not tied down by the commentaries 
 with which the statute of frauds has been so heavily over- 
 laid, the agreement must be declared void. 
 
 "It is not to be denied that a pretty large license was 
 formerly taken in the construction of statutes. Eefined 
 and artificial distinctions were sometimes sanctioned for 
 
CHAP. III. J CONTEACTS WITHIN STATUTE OF FRAUDS. 43 
 
 the purpose of taking cases out of the operation of legis- 
 lative enactments, and a broad foundation was thus laid 
 for the vast amount of legal controversy which has fol- 
 lowed." 
 
 He thought that the statute never would be " explained," 
 if it should be held that a promise by the seller to thresh 
 his grain, or to blow the chaff out of a bin of wheat before 
 sending it to market, changes the contract of sale into an 
 agreement for work and labor. " Whatever may be the 
 bearing of the earlier cases," he observed, " the more recent 
 decisions will not lead us into any such absurdity. If the 
 thing sold exist at the time in solido, the mere fact that the 
 seller is to do something to it to put it in a marketable con- 
 dition will not take the contract out of the operation of the 
 statute of frauds." 
 
 After referring with approval to the decisions in Garbutt 
 v. Watson, 1 Astey v. Emery, 2 Watts v. Friend, 3 and Smith 
 v. Surman, 4 the justice observed that these cases show that 
 the English courts " have got back again on the firm foun- 
 dation of reason and common sense." 
 
 In this opinion Nelson, J., concurred. 
 
 Cowen, J., dissented. He thought that, as none of the 
 wheat was in a condition for transportation and delivery, 
 as the statute of frauds respects a sale, and as by the cases 
 it meant a sale unmixed with a contract of labor in prepar- 
 ing the article for delivery, the contract was without the 
 statute. It may be said that nowhere have the two theo- 
 ries been more tersely and distinctly stated than in the 
 above opinions. 
 
 The distinction drawn by Cowen, J., is considered too re- 
 fined. Clearly the work to be done upon the wheat was 
 for the purpose of putting it in a condition for delivery, 
 and was done for the vendor himself, and not as em- 
 ployee of the vendee. This was an important element in 
 the case. 
 
 1 1 Dowl. & R., 219. 3 12 B. & C, 446. 
 
 2 4Maule&S.,262. «9B. &C., 561. 
 
44 , SALES. [CHAP. III. 
 
 § 47. The judgment in Cooke v. Millard l is also a good 
 illustration of the rule. There, as already indicated, a ver- 
 bal contract was made for the purchase of specified kinds 
 of lumber, at stated prices, amounting in the aggregate to 
 over $900. The lumber was in substantial existence, but 
 had to be dressed, rabbetted and cut to answer the order. 
 
 No memorandum in writing of the bargain was sub- 
 scribed. At the time of the contract the defendants told 
 the plaintiffs to notify one Percival when the lumber was 
 ready for shipment and he would take it away. In about 
 ten days the lumber was prepared according to the order, 
 and was placed on the plaintiffs' dock ; Percival was noti- 
 fied, but he did not ship the lumber, and next morning it 
 was destroyed by fire. 
 
 The referee found the contract to be void under the stat- 
 ute. The general term affirmed the judgment. On appeal, 
 two principal questions were discussed: First, whether the 
 contract was within the statute of frauds; and, secondly, 
 whether the acts done by the parties were sufficient to com- 
 ply with the terms of the contract so as to render the con- 
 tract enforceable by law. 
 
 '-' § 48. The court seem to have followed the case of Crook- 
 shank v. Burrell, 3 and Downs v. Ross, 3 and held that to 
 bring a case within the operation of the statute of frauds it 
 must be a contract for a thing existing in solido. The judg- 
 ment in favor of the defendants was affirmed. 
 
 The distinction, in general, is made between a sale of 
 goods in existence at the time of making the contract, and 
 an agreement to manufacture goods. The former is held to 
 be within the prohibition of the statute, and void unless it is 
 in writing, or there has been a delivery of a portion of the 
 goods sold, or a payment of the purchase price. The latter 
 is not. 
 
 165 N. Y. R., 352; 5 Lans. S. C, v. Zeilly, 52 Barb., 482; Stephens v. 
 243 (1871), general term third de- Banter, 51 id., 545. 
 partment, Parker, J. See Webster 2 is Johns., 58. 
 
 »23 Wend., 271 
 
CHAP. III. J CONTRACTS WITHIN STATUTE OF FRAUDS. 45 
 
 The rule advanced in Cooke v. Millard, that the test ought 
 to be between existing and non-existing articles, has, by 
 some of the cases, been criticised as unsound. 1 If it were 
 possible to adhere to such a rule it would doubtless relieve 
 the courts of much embarrassment; but obviously, the diffi- 
 culty is that in " border cases " it would be quite impossible 
 to adequately apply such a rule. 
 
 § 49. Dwight, C, in an able and luminous opinion, com- 
 mends the philosophical and readily understood rule laid 
 down in Lee v. Griffin, 2 and expresses surprise that it should 
 have been first enunciated at so late a stage in the discus- 
 sion of the statute ; but concedes that it is too late to adopt 
 it in full in JSTew York. " So far as authoritative decisions 
 have gone," he says, " they must be respected, even at the 
 expense of sound principle. The court, however, in view of 
 the present state of the law, should plant itself, so far as it 
 is not precluded "from doing so by authority, upon some 
 clearly intelligible ground, and introduce no more nice and 
 perplexing distinctions." 
 
 He declared the rule to be that, " when the chattel is in 
 existence, so as not to be governed by Parsons v. Loucks, 3 
 the contract should be deemed one of sale, even though it 
 may have been ordered from a seller who is to do some 
 work upon it to adapt it to the wants of the purchaser. 
 Such a rule makes but a single distinction, and that is be- 
 tween existing and non-existing chattels." 
 
 That the contract in Cooke v. Millard was one of sale 
 under the New York decisions is sustained by Smith v. New 
 York Central Eailroad Company, 1 and cases cited. 
 
 § 50. The distinction between a sale and a manufacture 
 was lucidly drawn by Park, J., at the general term. 5 He 
 
 i Goddard v. Binney, 115 Mass., v. Hill, 36 N. H. R, 311, it was held 
 
 454 ; Pitkin v. Noyes, 48 N. H. , 297 ; that a contract for sheep pelts 
 
 Meincke v. Falk, 55 Wis., 427. to be taken from sheep was a con- 
 
 2 1 Best & S., 272 ; 30 L. J. Q. B., tract for things in existence and a 
 
 252. sale. 
 
 348 N. Y., 17. scooke v. Millard, 5 Lans. (N.Y.), 
 
 ' 4 Keys, 180 (1868). In Oilman 246. 
 
46 SALES. [CHAP. III. 
 
 says, in effect, that the work to be done in Cooke v. Millard, 
 upon the subject of the action, was work which the plaint- 
 iffs were to do for themselves. The defendants agreed for 
 the lumber in such a condition, and though it was to be 
 lumber from certain piles in the plaintiffs' yard, yet it. was 
 no less a purchasing of lumber, and not a hiring of the 
 plaintiffs to manufacture it. " There is a marked distinc- 
 tion," says the court, " between such a transaction and an 
 agreement for the manufacture of an article. This was not 
 a manufacture of lumber. That existed in solido, and what 
 was to be done was to put it into marketable condition. It 
 Avas, part of it, in the rough, and this was to be planed and 
 matched. It was not of the desired size and was to be slit." 
 In this regard it was similar to unthreshed wheat; a sale of 
 wheat by parol, with an agreement that it should be 
 threshed by the vendors, which was held to be within the 
 statute. 
 
 § 51. A contract for the sale of a commodity not in ex- 
 istence at the time of the making of the contract, but which 
 the vendor is entirely to manufacture and deliver, is not a 
 contract of sale under the well-established decisions of New 
 York. They lay particular stress upon the statutory 'word 
 " sale." The subject-matter of the contract must be in sub- 
 stantial existence at the time the contract is made, parsons 
 v. Loucks 1 is a decisive expression of the prevai lino- doc- 
 trine. There the contract was for the manufacture of a 
 large quantity of book paper. The court not only held it 
 to be a contract for Avork and labor, but also that the word 
 sale in the statute refers to the time of entering into the 
 contract. 
 
 On the other hand, as elsewhere shown, the English cases 
 make particular reference to the time of delivery of the 
 goods or chattels as contemplated by the parties to the con- 
 tract, as also do the cases in Massachusetts and some other 
 states. 
 
 '48 N. Y., 19 (1871); Shepherd v. Pressey, 32 N. H., 57. 
 
CHAP. III.] CONTEACTS WITHIN STATUTE OF, FRAUDS. 47 
 
 § 52. Another good illustration of the law as to what 
 may be deemed a- manufacture and what a sale is the 
 case of the Passaic Manufacturing Company v. Hoffman, 1 
 wherein Mr. Chief Judge Daly delivered an elaborate 
 opinion. 
 
 The plaintiffs were manufacturers of " warps." The de- 
 fendants manufactured " market nets," and in their fabrica- 
 tion warps were used. 
 
 In March, 1867, the defendants wrote to the plaintiffs 
 that they might fill an order for warps, and repeated orders 
 for them, if they could do so on the same terms they had 
 supplied the defendants in previous years, that is, at the 
 lowest market price ; and that they would pay for all warps 
 bought in one month at the end of the following month. 
 The plaintiffs answered that they would make one hundred 
 warps for them " at seventy cents per pound upon the terms 
 proposed." The defendants replied, saying they did not 
 know their immediate wants, but that " meantime we wish 
 you to accept an order for fifty warps instead of one hun- 
 dred at the price of seventy cents, and if cotton (the mo- 
 ment this order is filled) is no lower you will have our 
 order for the fifty more." The plaintiffs, by letter, ac- 
 cepted the order for the fifty warps at seventy cents, and 
 agreed to deliver fifty more, if cotton was no higher nor 
 lower, at the expiration of the delivery of the first fifty. 
 The court held that this was a sufficient notice of accept- 
 ance on the part of the plaintiffs of the order for fifty 
 warps. 2 
 
 Twelve of the fifty warps were delivered during March 
 and April, and paid for. The remaining thirty -eight warps 
 were finished, and the plaintiffs requested the defendants to 
 receive them, but they would not. The plaintiffs then wrote 
 
 13 DalyR. (N. Y.), 495; 11 Am. SSeeVassar v. Camp, 11 N. Y. 
 
 Law Reg. (N. S.), 119. Dwight, C, R., 441 ; O'Neill v. James, 48 N. Y., 
 
 in Cooke v. Millard, 65 N. Y„ 363, 84; Phillips v. Moore, 71 Me., 78; 
 
 criticises the soundness of the dis- Mattison v. Schofield, 27 Wis., 671 ; 
 
 tinction drawn by the court in that Mactier v. Frith, 6 Wend., 106. 
 case. 
 
48 SALES. [chap. III. 
 
 to the defendants that the said warps had been finished 
 some time, and they would send them to their factory on 
 a specified day if requested. The defendants replied: ""We 
 beg leave to say that we accept no warps which you have 
 made without order and contrary to any statement of 
 ours. When we want warps we order them or send for 
 them, and when we don't order them, and when the price 
 of cotton upon which any order was based as a price is so 
 much lowered, the case is altered, and, too, the manufacture 
 of nets for the present has long since ceased with us. 
 Warps concerning which you are so anxious to sell were not 
 made for us any more than for any other manufacturer, 
 and we have authorized no manufacturer to pile up warps 
 for us, but that as we wanted them we would order." 
 
 The plaintiffs made several attempts to deliver the warps, 
 but without success. The ruling price of warps was then 
 about sixty-three cents instead of seventy cents per pound. 
 
 A few weeks afterwards, the plaintiffs wrote the defend- 
 ants that they had sent the thirty-eight warps to an auc- 
 tioneer to be sold at auction, stating the place and time of 
 sale, and they would hold them responsible for the differ- 
 ence between the contract price and the price they might 
 bring. The sale was advertised in the regular way. The 
 warps were sold accordingly, and realized $446.61 less than 
 the contract price; the plaintiffs recovered judgment for 
 that amount. 
 
 § 53. On the trial below, the president of the plaintiffs' 
 company testified that he did not know whether they had 
 any warps on hand when the first letter was received from 
 the defendants, nor could he tell how many they had on 
 hand during the subsequent correspondence; that they were 
 manufacturing similar warps "for other parties, and were 
 manufacturing this class of goods all the while ; he could 
 not say that they were ready all the time to deliver the 
 whole of them, but when a demand was made they were 
 ready to fill the order ; that the cotton was not bought for 
 the defendants nor the yarn in the spool made for them 
 
CHAP. III.] CONTRACTS WITHIN STATUTE OF FKAUDS. 49 
 
 particularly; that they were in the habit of manufacturing 
 this kind of warp for them, but seldom kept them on hand ; 
 that they were not a standard article, nor was there a mar- 
 ket price for such warps at the time of the sale. 
 
 Daly, 0. J., says : " I think this must be regarded as an 
 agreement between the plaintiffs and the defendants/or the 
 mamtfacture of fifty warps, and that it was not a contract 
 of sale within the meaning of the statute. It has several 
 distinguishing features. In the first place, the article is one 
 of a peculiar kind. In the next place, the number con- 
 tracted for was to be produced and delivered as the defend- 
 ants wanted them. In the third place, it is a fair pre- 
 sumption from the evidence that they were all manufactured 
 after the order for them was accepted. . . In the fourth 
 place, the evidence warrants the conclusion that the agree- 
 ment contemplated that the warps were to be of the plaint- 
 iffs' manufacture. This, I think, is indicated sufficiently by 
 a passage in the very letter in which the order is given by 
 the defendants for the fifty warps and the promise held out 
 of a further order for fifty more, viz. : " Finding your 
 warps uniform, we shall be faithful to you." This brings 
 the case within the distinction relied upon in Hight v. Kip- 
 ley, 1 that it is the labor and skill' of the person to whom the 
 order is given, combined with the material that is contracted 
 for and to which the other party is entitled ; and distin- 
 guishes it from Gardner v. Joy, 2 in which, to quote from the 
 work of Mr. Browne, 3 it was clearly no part of the bargain 
 that the vendor should manufacture the candles. The 
 judgment in favor of the plaintiffs was affirmed. 
 
 § 54. Although, when the subject-matter is in substantial 
 existence at the time of the contract, but something is 
 agreed to be done to the article by the vendor to put it in 
 condition for use or to render it marketable, the contract 
 generally is held to be a contract of sale, and void under the 
 statute unless there is a memorandum in writing, there is 
 
 1 19 Maine, 137. 3 Browne on Statute of Frauds, 
 
 2 9 Mete. (Mass.), 179. sec. 308, 3d ed. 
 
 4 
 
50 SALES. [CHAP. III. 
 
 one case, however, holding a contrary doctrine. Thus, in 
 Mead v. Case, 1 where a verbal contract was made for a 
 marble monument then complete in its general form, but 
 which was required to be lettered, polished, finished' and set 
 up at an agreed price, it was held to be a contract for work, 
 labor and materials, and valid without any writing. In ef- 
 fect it was declared to be a contract to manufacture a mon- 
 ument not then in existence. 
 
 " A monument," says Johnson, J., in that case, " is some- 
 thing designed and constructed to perpetuate the memory 
 of some particular person or event. Before the material 
 was polished and the inscriptions engraved upon it, it was a 
 mere structure of stone, Manic and meaningless:' In other 
 words, the defendant bargained for " the necessary labor 
 and skill to convert this stone into an enduring memorial 
 of the dead." 
 
 It was not converted into " an article of general mer- 
 chandise." 
 
 " It was as much converted, or manufactured, into a monu- 
 ment after it was thus fashioned and put together, as a 
 garment is made, or manufactured, from cloth previously 
 manufactured from wool or other raw material; or a sign, 
 by painting, or engraving the necessary inscriptions or de- 
 vices upon wood, metal or other material previously pre- 
 pared in that form; or statuary by the delicate and skilful 
 chiseling of the creative artist, after the marble has been 
 wrought into the general form by ruder labor; the process 
 in each case and degree of alteration being somewhat 
 different." The judgment in favor of the plaintiff was af- 
 firmed. 
 
 § 55. E. Darwin Smith, J., dissented. He thought the 
 test to be applied in this, as in every case, should be, is the 
 contract for the sale of goods? "Here," he says, "was a 
 case of the sale of a specific article in existence in solido, 
 seen and inspected and capable of immediate delivery." 
 
 133 Barb., 202. 
 
CHAP. III.] CONTRACTS WITHIN STATUTE OF FEAUD9. 51 
 
 Although " some additional work " was to be done upon 
 the monument, he considered the contract one of bargain 
 and sale. The Avork was included in the purchase price 
 fixed at the time, and " all the evidence tends to show that 
 the contract was for the sale of a monument." He could 
 not appreciate the view taken by the court, that the pieces 
 of marble composing the monument in question did not 
 constitute a monument while the same were in the plaintiff's 
 yard and shop, unfinished, and could only be fitly called a 
 monument when put up in memorial of the dead. The motion 
 for nonsuit, he thought, should have been granted. 
 
 § 56. The decision in Mead v. Case, supra, as has been 
 shown, was by a divided court. The policy of the decision 
 has been somewhat criticised. The learned justice in Cooke 
 v. Millard, 1 however, thought it "unnecessary to quarrel" 
 with the case, for if unsound, it was only a case of a misap- 
 plication of an established rule; and if sound, it was a so- 
 called border case, showing the refinements which are likely 
 to arise in applying to various transactions the rule adopted 
 in Sewall v. Fitch, 2 and kindred cases. 
 
 He thought the notion that such an arrangement of 
 marble placed in a cemetery over a grave cannot be regarded 
 as a monument, in the absence of an inscription, seems highly 
 strained. " Then," he says, " there could not be a memorial 
 church without an inscription." Then, also, it may be ob- 
 served, that it could not have been said of Sir Christopher 
 Wren, in his relation to one of his great architectural pro- 
 ductions, si quceris monumentum, circumspice. "It would 
 seem to be enough," says the court further, "if the monu- 
 ment reminds the passer-by of him whom it is intended 
 to commemorate, and this might be by tradition, inscriptions 
 on adjoining or neighboring objects, or otherwise." 
 
 Clearly the case seems to fall very near the line. But 
 quaere: As the monument, with the inscription upon it, could 
 only be of value to him or to those who desired it, may it 
 
 1 65 N. Y., 352. *8 Cowen, 215. 
 
52 SALES. [CHAP. III. 
 
 not be reasonably considered as an article made upon a 
 special order and not marketable, and therefore fairly with- 
 out the statute of frauds, under the decisions ? 
 
 § 57. There is another case, quite analogous to that of 
 Mead v. Case, 1 but decided the other way. It appeared in 
 Wolfenden v. Wilson, 2 that Margaret Ann Wilson, when she 
 was ill, and about three months before she died, ordered 
 from the plaintiffs a tombstone, to be put up at the grave 
 of her first husband. The base of the monument seems to 
 have been set up before her death, but the tombstone was 
 not put up until after her death. It did not appear how 
 far the work had advanced at the time of Mrs. Wilson's 
 death, nor that she knew that any portion of it had been 
 delivered; nor did it appear what kind* t of a monument it 
 was. 
 
 Richards, 0. J., said : " We may safely conclude that the 
 sale when carried out would have been the sale of a chattel, 
 and could have been sued for as goods sold and delivered. 
 The plaintiffs seem so to have considered it, for it is for 
 that they have sued." And he continues : " The fact that 
 the seller may have agreed to place it in a particular grave- 
 yard, or particular part of a cemetery, would not make it 
 any the less a chattel." And further the court instances 
 that the sale of a pump or the sale of a steam-engine would 
 be the sale of a chattel, though the seller had agreed to 
 place it in position, or fit it up, as the case might be. 
 
 After citing several leading English authorities, the court 
 concludes that a nonsuit would be proper. 
 
 § 58. In Ferren v. O'Hara, 3 as appears by the facts in the 
 case, a parol contract was made in March, by which the 
 plaintiff agreed to sell to the defendant all the malt which 
 he then had, and which he should make up to November 
 following, at ninety -three and one-half cents per bushel. A 
 certain part of the malt was received and paid for down to 
 
 1 33 Barb., 202. ovan v. Willson, 26 Barb., 138, is on 
 
 2 33 U. C. Q. B., 442 all fours with this case and decisive 
 
 3 62 Barb., 517. The case of Don- of it. 
 
CHAP. III.] CONTRACTS WITHIN STATUTE OF FRAUDS. 53 
 
 July, when the price of the article having declined, the de- 
 fendant refused to receive any more. 
 
 The plaintiff then had on hand such a quantity of malt 
 as that the difference between the contract price and the 
 then ruling market price, would, if sold, occasion a loss of 
 $369.48. 
 
 The plaintiff brought his action to recover this amount. 
 
 In the court below the plaintiff was nonsuited ; first, on 
 the ground that the contract was without consideration; 
 and second, that the contract was void under the statute of 
 frauds. 
 
 § 58a. In his decision, Mullen, J., after referring to sev- 
 eral cases in England and in this country, confesses that if 
 he were at liberty to follow what he considered the true 
 rule on the subject, he would yield to the reasoning in 
 Hight v. Ripley, 1 as to the difference between a contract to 
 manufacture and a contract of sale. 
 
 Referring to Donovan v. "Willson, 2 where the agreement 
 was for beer thereafter to be made, where it was held not 
 to be within the statute of frauds, he says : " I can perceive 
 no distinction in principle whether the subject-matter of the 
 contract is malt or beer; in each the material must be pur- 
 chased. In each the raw material is transformed by labor 
 and chemical changes into something different from itself. 
 And I feel constrained to yield to this, although, as I have 
 already remarked, I entertain great doubts whether the 
 construction which takes these cases out of the statute is 
 correct." 
 
 It was made in the ordinary business of the seller. No 
 particular skill or workmanship was to be exercised in its 
 manufacture. 
 
 !19 Me., 137. to be ground out of wheat which 
 
 2 26 Barb., 138. Contrast the had been bargained for but not yet 
 
 above cited cases with Bronson v. received, and it was held to be for 
 
 Wiman, 10 Barb. S. O. B., 406, work and labor, and not within the 
 
 where a contract was made to de- statute. 
 
 liver two thousand barrels of flour, 
 
54 SALES. [chap. III. 
 
 § 59. Crockett v. Scribner ' was an action in assumpsit 
 upon a parol contract for the manufacture of staves. 
 
 The staves were not in existence when the contract was 
 made, but were to be manufactured from a particular lot 
 of timber. This fact led the court to conclude that the con- 
 tract was for the manufacture and delivery of the staves, 
 and was not, therefore, within the statute of frauds. " The 
 law," said Dickenson, J., " is well settled that such a con- 
 tract is not within the statute of frauds." 
 
 § 60. The plaintiff, in Flint v. Corbitt, 2 was a manufact- 
 urer of and dealer in furniture. lie had his factory in one 
 part of the city and his warehouse in another, where his 
 goods were sold. Furniture made in the factory was fin- 
 ished in the warehouse. At the plaintiff's warehouse the 
 defendant selected several pieces of furniture, then only in 
 part covered, and directed that they be covered with fo*oca- 
 telle of a certain kind and quality. Nothing remained to 
 be done by the plaintiff but to cover and varnish the sev- 
 eral pieces of furniture as directed. 
 
 After the furniture was thus finished it was sent to 
 the defendant at his house, but he refused to receive it. 
 This action was brought to recover the purchase price. On 
 appeal it was decided that the contract was of sale. The 
 court say: ""When the contract is for the purchase of an 
 article which the vendor usually has for sale in the course 
 of his business, which he keeps in his warehouse substan- 
 tially made, but not entirely finished, that the taste or wish 
 of the purchaser may be consulted as to the final finish, the 
 finishing of it in the manner the purchaser desires, does not 
 change it from a contract of sale into a contract for work and 
 labor. 
 
 1 64 Maine, 447; Abbott v. Gil- Davis, 2 Sandf., 239; O'Neil v. N. 
 
 Christ, 38 id., 260; Goddard v. Bin- Y. and Silver Peak Mining Co., 
 
 ney, 115 Mass., 450. 3 Nev., 141; Kellogg v. Wither- 
 
 2 6 Daly's R., 439; Phipps v. head, 4 Hun, 273: Smith v. N. Y. 
 
 McFarlane, 3 Minn., 109; Rentch Cent. R. R., 4 Keys, 180; Deal v. 
 
 v. Long, 27 Md., 188; Seymour v. Maxwell, 51 N. Y., 653. 
 
CHAP. III.j CONTRACTS WITHIN STATUTE OF FRAUDS. 55 
 
 "What is in contemplation of the parties is the purchase 
 and sale of an article which is examined and selected, but 
 upon which something more is to be done, which, as a mat- 
 ter of taste, choice or expense is left to the purchaser." 
 
 The furniture, after being covered as ordered, was still a 
 subject of sale. The contract was void in default of a mem- 
 orandum of the bargain subscribed by the defendant, and 
 judgment was given for the defendant. .Clearly the facts 
 in the above case admit of a different rule of construction 
 from the facts in Mead v. Case. 1 
 
 § 61. Fitzsimons v. Woodruff 2 was an action for goods 
 sold and delivered, and labor performed in the construction 
 of a marble mantel at an agreed price. It was essentially 
 a verbal contract. 
 
 The mantel was taken to the defendant's house and put 
 up where it belonged by the workmen of the plaintiff and 
 defendant. The referee found, that after it was connected 
 with the chimney the defendant claimed that it was not ac- 
 cording to contract; that a silver bar was to have been 
 furnished. The defendant requested the plaintiff's work- 
 man to inform the plaintiff that there was none, which 
 he promised to do. The work was then continued; the 
 defendant also complained that one of the " wall-pieces was 
 too short," and said he would not accept the mantel. The 
 workman informed him that the wall-piece was right, but 
 the floor was uneven. The work was proceeded with with- 
 out further objection, the defendant being present until 
 within fifteen minutes before it was finished. The contract 
 did not require the plaintiff to furnish a silver bar, and the 
 wall-pieces were not uneven as shown by the testimony. 
 
 The referee, however, found that the contract was in- 
 valid. The appellate court held that he erred, and decided 
 that there was such an acceptance of the mantel as ren- 
 dered the contract valid. That the contract was of sale, 
 which would become complete upon a delivery to and an 
 
 133 Barb., 203. *74N. Y.,621. 
 
56 SALES. [chap. III. 
 
 acceptance by the defendant, although, as it appeared, the 
 plaintiff was to do more work upon it, and adapt it to the 
 wants of the defendant. 
 
 § 62. A simple oral agreement to deliver at a specified 
 time and place, no part of the goods delivered or price paid, 
 is void by the statute of frauds. 
 
 In Nichols v. Mitchell, 1 an agreement of the above charac- 
 ter, to deliver wheat, was held by Lyon, J., to be like the 
 original contract in Hooker v. Knab. 2 He says : " Had the 
 defendant delivered the wheat, or perhaps some portion of it, 
 pursuant to the contract, or had he paid the differences when 
 ascertained, these acts would have been an execution, or at 
 least a part execution, of the contract, but nothing less than 
 this would so operate." 
 
 In Nichols v. Mitchell, supra, a promissory note was 
 given for the difference between the contract price of the 
 wheat and the increased market value thereof, when delivery 
 was due by the terms of the contract, and it was held to be 
 void for want of consideration. 
 
 § 63. "Where A., in writing, agreed to purchase of B. 
 the flax straw to be raised from forty-five bushels of flax- 
 seed, and to be "delivered in a dry condition, free from 
 grass, weeds and all foreign substances;" the price being 
 agreed upon; and the amount of straw agreed to be de- 
 livered came within the words of the statute of frauds, 
 "for the price of fifty dollars," the court held that it 
 was essentially a contract of sale, and not for work, labor 
 or skill in producing the straw. Hence, as no part of the 
 price was paid, nor any part of the straw accepted or re- 
 ceived by the vendee, the contract was void. 
 
 In Brown v. Sanborn, 3 which case is the basis for the 
 above statement and conclusion, it was claimed that the de- 
 fendant, by parol, agreed to a modification of the contract 
 by waiving the condition that the straw should be free 
 
 130 Wis., 329. v. Allen, 23 id., 542; Drefolt v. 
 
 2 26 Wis., 511. Gorman, 1 id., 301. 
 
 3 21 Minn., 402. See, also, Nichols 
 
CHAP. III.] CONTEACTS WITHIN STATUTE OF FKATTDS. 57 
 
 from weeds, and agreeing to receive the straw notwith- 
 standing its weedy condition. This evidence was admitted 
 at the trial. 
 
 The court, Berry, J., says : " As the effect of admitting 
 the evidence was to allow the plaintiff to prove, by parol, 
 a contract which, to be valid, must be in writing, its admis- 
 sion was erroneous, and entitled the defendant to the new 
 trial granted by the court below." 
 
 The order granting a new trial was affirmed. 
 
 § 6i. In Hardell v. McOlure 1 certain wheat was to be 
 delivered at a particular mill, and the trial court refused to 
 instruct the jury that " the wheat existing in solido at the 
 time the contract was made, and not having to be raised or 
 manufactured, and though unthreshed, it was a contract 
 within the statute of frauds, and the plaintiff could not re- 
 cover," and for that refusal the judgment was reversed. 
 
 In Meincke v. Falk 2 the court approves the above de- 
 cision, and also the decision in Downs v. Boss. 8 After a 
 very careful examination of the authorities, Oassoday, J., 
 was induced to believe that Hardell v. McClure, supra, was 
 well decided not only by force of reason, but upon the 
 weight of authority, for it was clearly not a contract for 
 special labor in manufacturing anything, but a contract to 
 sell and deliver a certain quantity of wheat. And the mere 
 fact that the wheat was to be cleaned by the vendor before 
 delivery did not convert the contract from one of sale into 
 one for work and labor. The current authorities hold in 
 all such cases that it is a sale, pure and simple, within the 
 operation of the statute. 4 
 
 § 65. In further illustration of what contracts are within 
 the statute, take the case of Oason v. Cheely. 5 There the 
 contract was for the whole of the crop of cotton for the 
 
 12 Pin., 289; S. C, 1 Chand., 271. seller was in the act of smoking, it 
 
 2 55 Wis. R., 427. was held to be a sale. Kellogg v. 
 
 323 Wend., 271. Witherhead, 6 Supm. (T. & C), 
 
 < Clark v. Nichols, 107 Mass., 547. 525 ; Mem., S. C, 4 Hun, 273. 
 
 Thus, where an agreement was 6 6 Ga. R., 554(1849). 
 
 made to purchase hams which the 
 
58 SALES. [CBAP. III. 
 
 year 1846, to be delivered, at seven cents per pound, as soon 
 as it could be gathered and prepared for market. The 
 court held this to be a contract of sale, and not of work 
 and labor; for, observed the learned justice, the work and 
 labor would have been bestowed in the production of the 
 article if the contract had not been made ; and he distin- 
 guished it from the making or production of an article un- 
 suited to the general market, and the manufacture of goods, 
 wherein the manufacturer does not necessarily lose the re- 
 sult of his labor, for the reason that if the purchaser does 
 not take the goods ethers will. 
 
 The contract in question was entered into in September, 
 after the crop was planted. The statute of frauds of 
 Georgia is in effect the same as the English statute. 
 
 In that case, Nesbit, J., confessed to some difficulty in 
 fixing a rule by which it may be determined what contracts 
 are for the sale of goods, and what contracts are for work 
 and labor done. There are two classes of cases which are 
 easily determined : Where the article exists at the time in 
 solido, and is capable of immediate delivery, as cotton or 
 flour in bags, the contract is clearly within the statute of 
 frauds, as shown in Cooper v. Elston. 1 All such contracts 
 are within the statute. 
 
 § 66. The other class of contracts, which are equally 
 free from difficulty, are like that in Towers v. Osborne, 2 
 where an agreement was made for goods not in esse; and 
 when made, may be reasonably presumed to be unsuited to 
 the general market. Such as contracts for the manufacture 
 of goods suited alone to a particular market ; or for the 
 painting of one's own portrait. 
 
 "In the former class, the contracts are for the sale of 
 goods upon which no work or labor is to be bestowed. In 
 the latter class, the work and labor and materials constitute 
 the prime consideration. They are for work and labor, and 
 are, by authority and upon principle, without the influence 
 of the statute. Ex equo et bono, a man who agrees to be- 
 
 1 7 Term R, 14. 2 lStr.. 506. 
 
CHAP. III.] CONTRACTS WITHIN STATUTE OF FKAUDS. 59 
 
 stow his labor in the manufacture of goods for a price, and 
 which price he must lose unless the goods are received by 
 him who ordered them, ought to be paid ; and a statute 
 which protects the purchaser from liability in such a case 
 would be alike impolitic and unjust. Cases which are diffi- 
 cult of determination are those which partake in some 
 degree of both the classes referred to, yet fall decidedly 
 within neither. Contracts for goods upon which some labor 
 must be bestowed to prepare them for delivery, and which, 
 when ready for delivery, are vendible in the general 
 market." 
 
 That the law in relation to such contracts was considered 
 quite unsettled in England in the ninth year of the reign of 
 George IV., is obvious from the act of parliament of that 
 year,, amendatory of section 17 of the statute of frauds. 
 
 § G7. In Bird v. Muhlenberg, 1 the general rule is admi- 
 rably expressed, that the proposition should be limited, so 
 as to embrace only such contracts as primarily contemplate 
 work and labor to be done at the instance of the purchaser, 
 and for his use and accommodation, so as to make the work 
 and labor of the contracting vendor, or such as he may 
 procure to be bestowed, at his expense, the essential consid- 
 eration of the contract. In such cases, there is great reason 
 in the distinction. 
 
 " For suppose such a case as this," said Butler, J., " that 
 a painter contracts to deliver a certain number of paintings 
 of a novel description, such as has been designed and sug- 
 gested by the other party, and which, perhaps, would suit 
 nobody else. In pursuance of the undertaking, materials 
 are bought, time is lost and labor bestowed ; could the con- 
 tracting party for such paintings get off and be relieved 
 because the contract was for the sale and delivery of goods?" 
 
 In the above case the goods ordered were military sashes. 
 They were such as the plaintiff could never have had any 
 occasion to buy in his general business. This was conceded. 
 
 In the transaction he incurred expense and trouble en- 
 
 1 1 Rich. (S. C.) E., 202. 
 
60 SALES. |CHAI\ III. 
 
 tirely to accommodate the defendants; for unless the de- 
 fendant and his brother officers had taken the sashes, it is 
 hardly probable, said the court, that others would have 
 bought them in the general course of trade. 
 
 The court say : " If the plaintiff had been a maker of 
 such articles, and had made such sashes as these for the de- 
 I fendant, the contract would have been regarded as one for 
 Work and labor, as well as for goods to be delivered." 
 Clearly as much so as if a tailor had made a new-fangled 
 dress for a peculiar individual, and such as would, perhaps, 
 suit no one but the person who bespoke it. 
 
 The judgment in favor of the plaintiff was affirmed. 
 
 § 68. So in Bates v. Coster, 1 where the contract was 
 made for the sale of a colt, to be delivered at a future time, 
 gelded and well, at an agreed price, and the animal was 
 present before the contracting parties; but the labor, ex- 
 pense and risk of the operation of gelding were for the seller. 
 
 The contract not being in writing, nor any part of the 
 price paid, it was declared to be a contract of sale, and ac- 
 cordingly void within the statute of frauds. 
 
 Bockes, J., substantially held that, as there was no ele- 
 ment of manufacture involved in the agreement in the case, 
 and no idea of compensation for work and labor as such, 
 the contract was not enforceable by law. 
 
 § 69. The case of "Winship v. Buzzard 2 arose out of a 
 verbal contract for the alleged purchase of a cotton-gin, 
 which the defendant contracted to buy of the plaintiffs, 
 through their agent. 
 
 The statute of frauds of South Carolina was then and is 
 now the same as the English statute. 
 
 The court held that the statute applied to contracts for 
 the sale of goods, wares and merchandise, but a distinction 
 had been taken between contracts of sale merely, and con- 
 tracts for the sale of goods, upon which work and labor 
 were previously to be bestowed. 3 
 
 1 1 Hun, 400; 3 Supm. Ct. (T. & 29 Eich. Law E., 103 (1855). 
 C), 580. 3 Bird v. Muhlenberg, 1 id., 199. 
 
CHAP. III.] CONTRACTS WITHIN STATUTE OF FRAUDS. 61 
 
 It was also said that sales of goods which exist in solido, 
 at the time of sale, although the contract be executory and 
 the goods are to be delivered at a different place, are within 
 the statute of frauds.' 
 
 But a contract for a chariot to be made ; 2 for a quantity 
 of oak pins to be cut and delivered ; 3 for a quantity of corn 
 to be threshed out; 4 has been held not within the statute 
 of frauds. The court decided that the plaintiff could not 
 recover, unless work and labor were to be bestowed on the 
 gin, and as the evidence on this point was inconclusive, 
 the nonsuit was set aside, leaving the question for the jury 
 _whether the parties understood that the contract was for 
 the sale of the gin merely, or for. a sale on which work was 
 to be bestowed. 
 
 § TO. The controversy between the plaintiffs and the 
 defendants, in Pawelski v. Hargreaves, 3 was whether an 
 order for three brewery trucks, which the plaintiffs at Pat- 
 erson, New Jersey, sought to fill by furnishing them from 
 the Milburn Wagon Company's works, at Toledo, Ohio, 
 fell within the statute of frauds as to the sale of goods, 
 wares and merchandise, for the price of $30, or upwards, 
 and therefore void ; or whether the plaintiffs were only the 
 agents by whom the defendants made this purchase of the 
 Milburn "Wagon Company. 
 
 It was shown that the trucks were existing at the time of 
 the contract, in solido, and were not to be made according 
 to order; nor as things distinguished from the general busi- 
 ness of the plaintiffs, for they were in the direct line of 
 their business, and with that knowledge the defendants 
 sought them to obtain the trucks. 
 
 It was held that whether the trucks were in the salesroom 
 of the plaintiffs, ready for delivery with slight alterations 
 
 i Cooper v. Elston, 7 T. E., 14. 4 Clayton v. Andrews, 4 Burr., 
 
 2 Towers v. Osborne, Str., 506. 2101. 
 
 3 Groves v. Buck, 3 M. & S„ s 47 N. J. B., 334, Scudder, J.; 
 178. Benjamin on Sales, Corbin's ed., 
 
 vol. 1, p. 121. 
 
62 SALES. [CHAP. III. 
 
 and adaptations, or were in the salesroom of their business 
 correspondent in a distant city, it could make no difference. 
 It was a contract of sale within the statute. Accordingly, 
 the judgment rendered for the plaintiffs in the court below 
 was reversed. 
 
 § 71. In general the courts have held that it is for the 
 jury to determine whether there has been a complete per- 
 formance of a contract for the sale of goods. 
 
 Thus, in Weightman v. Caldwell, 1 where 0. agreed to sell 
 to W. his share in a cargo afloat in the ship Aristides (Z. 
 supercargo), at fifteen per cent, advance on a stated amount, 
 payable at five months from the date, and to give his notes 
 with an approved indorser, and in compliance therewith 
 W. did give his notes; and in an action thereon, the want 
 of consideration under the statute of frauds, being set up as 
 a defense, on the ground of the defect of mutuality in the 
 written contract, the court below left it to the jury to say 
 from the evidence whether an actual performance of the 
 agreement was had, and the jury having found that there 
 was, and found a verdict for the plaintiff, the supreme court 
 of the United States affirmed the judgment. 
 
 UWkeaton, 85. 
 
CHAPTEE IV. 
 
 "WHAT CONTRACTS ARE WITHIN THE STATUTE OP FRAUDS. 
 THE ENGLISH RULE OF CONSTRUCTION. 
 
 § 72. A contract for an article which at the time of delivery is the 
 subject of sale is within the statute of frauds. 
 
 73. The same subject ; Mr. (Justice Blackburn's views. 
 
 74. Construction of the statute ; some early cases. 
 
 75. Tendency of the cases toward a liberal construction. 
 
 76. The new English doctrine ; Downs v. Ross. 
 
 77. "Where the subject of the contract exists in solido; conflicting 
 
 authorities. 
 
 78. "Where work is to be done on the article by the seller, or by the 
 
 buyer. 
 
 79. Rule where the goods are usually produced by the manufact- 
 
 urer ; nice distinctions required. 
 
 80. As to executory contracts ; Towers v. Osborne. 
 
 81. The same subject continued. 
 
 82. Rule adopted in a Maryland case. 
 
 83. Lord Mansfield's views as to executory contracts under the stat- 
 
 ute of frauds. 
 
 84. The statute of frauds extends to executory contracts ; Rondeau 
 
 v. Wyatt. 
 
 85. The same subject continued. 
 
 86. The rule of Garbutt v. "Watson. 
 
 87. "Where labor enters into the consideration of the contract. 
 
 88. "Where, by the contract, a chattel is ultimately to be delivered, 
 
 a sale ; the case of Lee v. Griffin. 
 
 89. The same general subject: a case sui generis; Clay v. Yates. 
 
 90. Rule laid down by Pollock, C. B., rejected by some authorities. 
 
 91. What is an entire contract. 
 
 92. Contract for work and labor ; Grafton v. Armitage. 
 
 93. Distinctions drawn as to contracts of sale and for work and labor. 
 
 94. Example of a mixed contract for chattels and work and labor ; 
 
 Smith v. Surman. 
 
 95. Another example ; Watts v. Friend. 
 
 § 72. A review of the decisions which have given expres- 
 sion to the meaning of the statute of frauds on this subject 
 
64 SALES. [CHAP. IV. 
 
 show the rule, as established in England, tS be substantially 
 as follows: If the subject-matter of the contract is to be 
 manufactured, and when manufactured it will result in a 
 sale, or can be regarded as goods capable of sale, by the 
 manufacturer, at the time of delivery, without regard to the 
 question whether the subject-matter were in existence or 
 not when the contract was made, — it is deemed a sale, and 
 falls within the operation of the statute. 
 
 But this rule of construction does not obtain in respect to 
 those contracts where work is done upon the goods of an- 
 other, or even where materials are supplied or added to the 
 goods of another. 
 
 If, therefore, certain labor and materials be furnished in 
 repairing an article, it would simply be a contract for work 
 and labor, and not of sale. On the other hand, if the article 
 be produced by labor and materials, which would result in 
 a thing which could be a subject of sale, the contract would 
 be within the statute. 1 
 
 § 73. Thus, Blackburn, J., in Lee v. Griffin, 2 substantially 
 says, that if the contract be such that it will result in the 
 sale of a chattel, then it constitutes a sale ; but if the work 
 and labor be bestowed in such a manner as that the result 
 would not be anything which could properly be said to be 
 the subject of a sale, then an action for work and labor is 
 the proper remedy. In Clay v. Yates, supra, the circum- 
 stances were peculiar; but had the contract been completed, 
 it could scarcely perhaps have been said that the result was 
 the sale of a chattel. He says: "I do not think that 
 the relative value of the labor and of the materials on 
 which it is bestowed can in any case be the test of what is 
 the cause of action ; and that if Benvenuto Cellini had con- 
 tracted to execute a work of art for another, much as the 
 value of the skill might exceed that of the materials, the con- 
 
 iSome cases in Minnesota have Sanborn, 21 id., 402; and see, also, 
 followed the same rule: Phipps v, Howe v. Palmer, 3 B. & A., 321. 
 McFarlane, 3 Minn., 109; Brown v. 2 1 B. & S., 272; 30 L. J. Q. B., 
 
 252 ; Benj. on Sales, pp. 102, 103. 
 
CHAP. IV.J "WHAT CONTRACTS WITHIN STATUTE OF FKATJDS. 65 
 
 tract would have been (none) the less for the sale of a 
 chattel." 
 
 Hill, J., thought the decision in Clay v. Yates : the cor- 
 rect one. 
 
 Mr. Benjamin, referring to Lee v. Griffin, says that, from 
 the very definition of a sale, the rule would seem to be at 
 once deducible, that if the contract is intended to result in 
 transferring for a price, from B. to A., a chattel in which A. 
 had no previous property, it is a contract for the sale of a 
 chattel, and, unless that be the case, there can be no sale. 
 
 § 74. As already observed, section 17 of the English 
 statute of frauds has been in effect adopted in most of the 
 states of this country. It has been a fruitful subject of liti- 
 gation for nearly two centuries. 
 
 From the case of Towers v. Osborne, 2 in 1724. to Garbutt 
 v. "Watson, 3 in 1822, in England ; and from Eichelberger v. 
 McCauley, 4 decided in Maryland, in 1766, to Downs v. Boss, 8 
 decided in New York, in 1840, embracing the palmy days of 
 the courts of both countries, there seems to have been, if 
 not an uniform construction, at least a concurrence in the 
 principles upon which the decisions rested, namely, to give 
 to the statute a strict construction ; and not to hold any 
 case within it, unless the article which was the subject of 
 sale was in a condition for delivery at the time of the mak- 
 ing of the contract. 
 
 Hence, contracts for the sale of any article which had to 
 be changed in form, or upon which work and labor had to 
 be bestowed by the seller to put it in condition for delivery, 
 were adjudged to be contracts for work and labor, and not 
 of sale. 
 
 1 1 H & N 73. & SeL, 178 (1814); Cruiokshank v. 
 
 2 1 Strange,' 506. Burrell, 18 Johns. R., 58 (1820), 
 
 3 5 b & A., 613. Spencer, C. J. ; Hardell v. McClure, 
 
 * 5 Har. & John., 213. 1 Chandler's (Wis.) R. , 271 ; Atkin- 
 
 »23 Wend., 270. The following son v. Bell, 8 Barn. & Cres., 277 
 
 cases also bear out the above obser- (1828) ; Smith v. Surman, 9 B. & C. 
 
 vations : Rondeau v. Wyatt, 2 H. 568 (1829) ; Newman v, Morris, 4 H. 
 
 Bl. (1792) ; Groves v. Buck, 3 Maule & McH. (Md.), 421 (1799). 
 5 
 
66 SALES. [chap. IV. 
 
 § 75. In Hardell <o. McClure, 1 the court was constrained 
 to say that, construing the provisions of section 17 by the 
 well known meaning of the language employed, it must be 
 admitted that the earlier decisions confine it to a narrow 
 and technical scope, and if the policy of the act was not mis- 
 conceived, the courts were bound to give to it a fair and 
 liberal construction. 
 
 The court believed that the rule established in Garbuttw. 
 Watson 2 should have been adopted in the first instance; 
 and that the rule enunciated in Downs v. Ross 3 was in ac- 
 cordance with reason and sound public policy. 
 
 In view of the more recent authorities, it may be observed 
 that it is not a little singular that the idea ever prevailed 
 that the statute of frauds was only applicable to cases 
 where the bargain was to be immediately consummated. 
 
 § 76. The case of Downs v. Ross 4 (1840), which sustained 
 the new English doctrine, arose out of a contract for the 
 delivery of certain wheat, the larger part of which was un- 
 threshed at the time the contract was made ; and which the 
 vendor agreed to put in condition for delivery. 
 
 The facts and decision of the case have already been 
 stated at considerable length in another section. 5 In a 
 powerful and luminous judgment, Bronson, J., held it to be 
 a contract of sale. 
 
 Down to that time, no other court in. this country had de- 
 parted from the old English doctrine holding that such con- 
 tracts were essentially for work and labor. 
 
 The conflict between what may be called the old and the 
 new doctrine, of construction, in such cases, was effectually 
 settled in 1828, -by the enactment of the statute of 9 Geo. 
 IV., commonly called Lord Tenterden's act, which, while 
 establishing no new principle, in plain and explicit lan- 
 guage, it gave the true construction of the statute of frauds, 
 and set at rest many vexed questions. 
 
 1 1 Chand. (Wis.) R., 271. < 23 Wend., 270 ; Cason v. Cheely, 
 
 2 8 Barn. & Aid., 613. 6 Ga., 555. 
 
 3 23 Wend., 270. Ȥ45. 
 
CHAP. IV.J WHAT CONTRACTS WITHIN STATUTE OF FRAUDS. 67 
 
 For example, take the case of Hi bble white v. McMorine, 1 
 where a contract was entered into for goods to be delivered 
 at a future day; and notwithstanding the circumstance that 
 the vendor neither had the goods in his possession at the 
 time, nor had contracted to purchase them, nor had any- 
 reasonable expectation of procuring them by the time ap- 
 pointed for delivering them, except by purchasing them 
 after making the contract, the court held the contract to be 
 valid. 
 
 § 77. In general, while some of the cases in England and 
 in this country hold that if the subject of contract exists in 
 solido, to use the expression of the old cases, although some- 
 thing yet remains to be done by the seller to make the 
 article marketable, or to suit the wants of the buyer, the 
 contract is within the statute of frauds, 2 other leading cases 
 have held that if the article is not in esse and cannot then 
 be delivered by reason of its incomplete condition, but must 
 undergo alteration, construction or manufacture, the con- 
 tract is for work and labor, and therefore without the statute 
 of frauds. 3 
 
 In Rondeau v. "Wyatt, supra, Lord Loughborough thought 
 the case of Towers v. Osborne, supra, was plainly out of the 
 statute, because " it was for work to be done, and materials 
 and other necessary things to be found, which is different 
 from a mere contract of sale, to which species of contract 
 alone the statute is applicable." 
 
 Mr. Benjamin says that the decision in Towers v. Osborne 
 was " wrong " if it went upon the ground that Lord Lough- 
 borough states, namely, that the order for the chariot was 
 not a contract or agreement for the sale of a chattel. 
 
 But there may be found several cases in this country 
 which would seem to lead to the conclusion that the decis- 
 ion in that case was right. 4 
 
 15M. & W., 462; 3 Jur., 509. 4 Maule & Sel.. 262; Watts v. 
 
 * Rondeau v. Wyatt, 2 H. Bl., 63 Friend, 10 B. & C, 446. 
 
 (1792); Cooper v. Elston, 7 T. R., 3 Clay v. Yates, 1 H. & N., 73. 
 
 140 (1796) ; Garbutt v. Watson, 5 B. 4 Mixer v. Howarth, 21 Pick. , .205 ; 
 
 & A., 613 (1822); Astey v. Emery, Cummings v. Dennett, 26 Me., 397; 
 
68 SALES. [CHAP. IV. 
 
 § 78. And again, other oases have held that the question 
 whether the contract is of sale, or for work and labor, may 
 be determined by inquiring whether the work to be done 
 upon the article is for the seller or the luyer; if for the 
 latter, it is for work and labor ; if for the former, it is a con- 
 tract of sale. 1 
 
 § 79. The distinction between a contract for the manu- 
 facture of an article such as the manufacturer produces in 
 the usual course of his business, and a contract upon a 
 special order for an article not usually produced by him, 
 may be readily determined. 
 
 The greater difficulty arises in distinguishing between 
 the former class of contracts, and a contract for an article 
 which exists in solido, but upon which certain work is to 
 be bestowed to render it fit for the market, or to suit the 
 wants of the buyer. In cases arising under the latter class 
 it is difficult to establish a criterion. For there at once 
 arise nice distinctions as to whether the work, labor and 
 materials furnished amount to a construction and fabrica- 
 tion, or only to a repairing or modification of the article. 
 
 A reference to the cases will be found useful in showing 
 in what different lights these several questions have been 
 presented for adjudication. 
 
 § 80. The doctrine that contracts which are not intended 
 to be immediately executed are not within the meaning of 
 the statute of frauds, first judicially announced in Towers 
 v. Osborne,' 2 was afterwards followed by Lord Mansfield, in 
 Clayton v. Andrews. 3 
 
 The case of Towers v. Osborne arose out of a verbal con- 
 tract to make and furnish a chariot, which, when com- 
 pleted, the defendant refused to take. Lord Chief Justice 
 
 Abbott v. Gilobrist, 38 Me., 260; (1861); 30 L. J. Q. B., 252; Gard- 
 
 Donovanu Willson, 26 Barb., 138; ner v. Joy, 9 Met., 179; Clay v. 
 
 Goddard v. Binney, 115 Mass., Yates, 1 H. & N., 73. 
 
 450. 2 1 Strange, 506 ; Mucklow v. 
 
 i Atkinson v. Bell, 8 B. & C, 277 ; Mangles, 1 Taunt., 318 ; Buxton v. 
 
 Smith v. Surman, 9 B. & C, 568; Bedal, 3 East, 303. 
 
 Lee v. Griffin, 1 Best & S., 273 » 4 Burr., 2101(1767). 
 
CHAP. IV.] WHAT CONTRACTS WITHIN STATUTE OF FRAUDS. 69 
 
 Pratt, at Nisi Prhts, held that the statute of frauds did 
 not apply to executory contracts, but related only to con- 
 tracts for the actual sale of goods where the buyer was im- 
 mediately answerable, without time given him by special 
 agreement, and the goods were to be delivered at once. 
 This was in 1724. The decision was for a time referred to 
 with approval, but the policy of it has long since been re- 
 jected. Subsequent cases have quite uniformly held that 
 all such contracts fall within the operation of the statute. 
 Notably, Rondeau v. "Wyatt, 1 where Lord Loughborough 
 emphatically rejected Clayton v. Andrews, and, as shown 
 by other cases, that decision was wrong. 
 
 § 81. In the early case of Newman v. Morris, 2 in Mary- 
 land, the contract was for the purchase of four hundred 
 pounds of cheese, to be paid for on delivery. The plaintiff 
 had the cheese in his possession about two miles from Port 
 Tobacco, where the contract was made, and where the 
 cheese was to be delivered. 
 
 The defendant claimed he was not bound by the contract, 
 as there was no memorandum signed by him, no earnest 
 paid, nor any part of the goods delivered. While the 
 plaintiff contended that it was an executory contract, and 
 not within the operation of the statute of frauds. 
 
 The court below. Stone, C. J., following the then current 
 English decisions, held that the defendant was not bound 
 by the contract, and the judgment was affirmed on appeal. 
 
 § 82. So also in Eichelberger v. McCauley," it appeared 
 that the defendant verbally agreed with the plaintiff to de- 
 liver to him eight hundred bushels of wheat, which was 
 then unthreshed and in the straw (and so understood be- 
 tween the parties), on or before Christmas (about six weeks 
 off), if the weather would admit of the wheat being gotten 
 out by that time, for which Eichelberger agreed to pay 
 $1.65 per bushel, on delivery. The weather did admit of 
 
 1 2 H Bl., 63; Groves v. Buck, 3 2 4 II. & McH. (Md.), 421. 
 M. &S.,178. » 5 H. & J. (Md.), 218. 
 
70 SALES. [OHAP. IV. 
 
 the wheat being threshed out by or before Christmas, but 
 the defendant refused to deliver it. 
 
 The court below decided that the case was within the 
 operation of the statute of frauds. After referring to 
 Rondeau v. Wyatt, 1 and Clayton v. Andrews, 2 and the dis- 
 tinction drawn in the cases generally, the court said it did 
 not intend to push the rule further than the circumstances 
 of the case of Clayton v. Andrews would justify, and they 
 must not, therefore, be understood to extend it to cases 
 where the articles sold are not to be prepared for delivery 
 by work and labor, and when the work and labor may not 
 be considered in some measure a part of the contract. 
 
 The contract was held to be for work and labor, and the 
 judgment was reversed. 
 
 The above decision is at variance with the more recent 
 English cases, but at that time it was in accord with the 
 adjudged cases. 
 
 § 83. In Clayton v. Andrews, 3 the contract was for the 
 future delivery of certain wheat, which had to be threshed 
 before it was delivered. 
 
 In that case the gist of Lord Mansfield's decision went 
 to the point that the statute of frauds was not applicable to 
 executory contracts. The distinction there drawn has been 
 considered " more nice than wise." Such deference, how- 
 ever, was paid to the construction given to the statute in 
 that powerful judgment, that the court of king's bench 
 adopted it, although some of the cases struggled for a time 
 to find other grounds on which to support the decision. 
 
 Mr. Justice Grose, in Cooper v. Elston, 4 speaking of Lord. 
 Mansfield's opinion, said : " If by that were meant contracts 
 for the sale of goods to be executed on a future day, such 
 a construction would be a repeal of the act ; but if it only 
 
 1 2 H. Bl., 63. Jackson v. Covert, 5 Wend., 139; 
 
 3 4 Burr., 2101. Sawall v. Fitch, 8 Cow., 215 ; Astey 
 
 U Burr., 2101 (1767). See, also, v. Emery, 4 Maule & Selw., 262. 
 
 Garbutt v. Watson, 5B. & A., 613; 4 7 Term R, 14(1796); Groves v. 
 
 Bennett v. Hull, 10 Johns., 364; Buck, 3 Maule & Selw., 178. 
 
CHAP. I V.J WHAT CONTRACTS WITHIN STATUTE OF FRAUDS. 71 
 
 meant such contracts as were incapable of being executed 
 at the time, then the decision was right." 
 
 And Lord Loughborough, in Eondeau v. Wyatt, 1 apolo- 
 getically observes, that "there was some work to be per- 
 formed, for it was necessary that the wheat should be 
 threshed before the delivery," and he declares at the same 
 time that it is a nice distinction. But, as already observed, 
 he discarded the decision of Lord Mansfield in every pos- 
 sible view. The policy of the judgment in Eondeau v. 
 Wyatt, supra, has since been the rule of the English courts. 
 That case was decided over thirty years before Lord Ten- 
 terden's act, which extended the application of section 17, 
 in so many words, to contracts for the sale of goods intended 
 to be delivered at a future time. 
 
 § 81. In Eondeau v. "Wyatt, 2 the contract was for the 
 sale of three thousand sacks of flour, to be shipped onboard 
 certain ships in the river Thames. The flour existed in the 
 very shape and substance in which it was to be delivered. 
 The sacks were to be shipped for foreign ports, at 41s. per 
 sack, but the defendant afterward refused to deliver the 
 same, for which breach damages were claimed. 
 
 Lord Loughborough in a lucid and able judgment held 
 that the contract was clearly within the statute of frauds; 
 that the circumstance that the sacks were to be thus shipped 
 on board of vessels provided by the buyer, for transportation, 
 did not affect the question ; and that the statute would not 
 be of much use unless it were to extend to executory con- 
 tracts. 
 
 It may be reasonably presumed that the statute of frauds 
 was des'g.ied to prevent the uncertainty and confusion aris- 
 ing in all such cases. 
 
 § 85. So, in Astey v. Emery, 3 where the agreement was 
 that an additional price should be paid by the vendee to 
 the vendor for certain goods, by reason of their being deliv- 
 
 12H. Bl., 63. Hi Smith v. Surman, 9 B. & C, 
 
 2 2 H. 6^,63; Leake on Cont., 561. 
 137; Wilks v. Atkinson, 6 Taunt., 3 4 Maule & Selw., 263. 
 
Y2 SALES. [CHAP. IT. 
 
 ered to the vendee at a considerable distance from the place of 
 sale, but afterward no separate charge was made, the con- 
 tract was declared to be within the statute of frauds. 
 
 § 86. In further illustration of the new English rule, take 
 the case of Garbutt v. Watson. 1 There the defendant, a 
 corn merchant, verbally agreed to purchase of the plaintiffs, 
 who were millers near Hull, one hundred sacks of flour, not 
 yet ground, to be prepared and shipped at a future day. 
 There was no memorandum in writing of the contract, nor 
 any earnest paid. This is a stronger case, if anything, than 
 Clayton v. Andrews, 2 and all the judges concurred in the 
 opinion that the case of Clayton v. Andrews could not be 
 supported. 
 
 Abbott, C. J., said the plaintiffs ground the flour for the 
 purpose of general sale, and sold this quantity to the defend- 
 ant as part of their general slock. 
 
 Bay ley, J., thought it was substantially a contract for the 
 sale of flour, and that it was quite immaterial whether the 
 flour was at the time ground or not. It was a contract for 
 goods, he said, and came within the meaning of the statute 
 of frauds. Best and Holroyd, concurred. 
 
 The statute in the above case was, as Abbott, C. J., always 
 said it ought to be, reasonably construed. 
 
 § 87. In Bentch v. Long, 3 the subject of the contract 
 was two thousand bushels of corn, which at the time was 
 in the field ungathered and unshucked, and which, by the 
 contract, the plaintiff was entitled to have delivered to him 
 at a future time, gathered and shucked. 
 
 In this case, the corn was not at the time of the contract 
 in a condition for delivery, and the jury were warranted in 
 finding that work and labor were necessary to be done and 
 formed a part of the consideration for the price to be paid. 
 
 The facts in the case are very similar to those in Eichel- 
 berger v. McCauley, 4 where the labor which entered into 
 
 11 D. & E., 219; and 5 B. & A., 3 27 Md., 188. 
 613, S. C. 4 5 Har. & John., 213. 
 
 * 4 Burr., 2101. 
 
CHAP. IV.J WHAT CONTRACTS WITHIN STATUTE OF FKAUDS. 73 
 
 the consideration of the contract was the threshing of the 
 wheat; here it was the gathering and shucking of the corn. 
 " So that," says the court, Bartol, J., " the cases are identi- 
 cal in principle." 
 
 Judgment in favor of the plaintiff was affirmed. 
 
 § 88. The conflict of opinion which has existed in 
 England may in a degree be illustrated by the cases of Lee 
 v. Griffin, 1 and Clay v. Yates. 2 
 
 The former action was to recover 211. for two sets of arti- 
 ficial teeth ordered by the defendant's testator. There the 
 plaintiff, in pursuance of the order, prepared a model of her 
 mouth and made two sets of artificial teeth. "When they 
 were ready he wrote, requesting her to appoint a day when 
 he could fit them. She died before the teeth were fitted. 
 
 Blackburn, J., said: " I think that in all cases, in order to 
 ascertain whether the action ought to be brought for goods 
 sold and delivered, or for work and labor done and materi- 
 als provided, we must loolc at the particular contract entered 
 into hetween the parties. If the contract be such that, when 
 carried out, it would result in the sale of a chattel, the party 
 cannot sue for work and labor; but if the result of the con- 
 tract is that the party has done work and labor which ends 
 in nothing that can become the subject of a sale, the party 
 cannot sue for goods sold and delivered." 
 
 In that case, he thought that the contract was to deliver 
 a thing which, when completed, would result in the sale of a 
 chattel; in other words, the substance of the contract was 
 for goods. 
 
 He did not think that the test to apply in such cases 
 should be whether or not the value of the work exceeded 
 that of the materials used in the execution. For, he says, 
 " if a sculptor were employed to execute a work of art, 
 greatly as his skill and labor, supposing it to be of the 
 highest description, might exceed the value of the marble 
 
 11 Best & Smith, Q. B. R., 277; Arniitage, 2 C. B., 340; 15 L. J. 
 30 L. J. Q. B., 252. C P., 20 
 
 2 1 H. & N., 73 (1856) ; Grafton v. 
 
Y4 SALES. [CHAP. IV. 
 
 on which he worked, the contract would, in ray opinion, 
 nevertheless be a contract for the sale of a chattel." J 
 
 In the same case, Compton, J., said : " "Where the con- 
 tract is such that a chattel is ultimately to be delivered by 
 the plaintiff to the defendant, when it has been sent, then 
 the cause of action is goods sold and delivered." 
 
 It was held in Isaacs v. Hardy, 2 that a contract by an 
 artist with a picture dealer, to paint a picture of a given 
 subject at an agreed price, is a contract for the sale of a 
 chattel, and within the statute. 
 
 By some of the decisions in this country, the painting of 
 a picture by an artist, which would be a thing of general 
 sale in the market, is held to be goods ; but if a picture is 
 painted upon a special order, and not the subject of general 
 sale, it would be without the statute of frauds. 
 
 § 89. Clay v. Yates 3 was a case sui generis. There the 
 plaintiff, a printer, contracted to print a second edition of a 
 work previously published by the defendant. The plaintiff 
 was to furnish the materials, including the paper. 
 
 It was decided that this was not a contract for the sale of 
 a thing to be delivered at a future time, nor a contract for 
 making a thing to be sold when completed, but a contract 
 to do work and labor and furnishing materials ; and was 
 not governed oy Lord Tenterden 's act. 
 
 The case turned upon the peculiar circumstances in- 
 volved. 
 
 Pollock, C. B., said : " In such cases it seems to me the 
 criterion is, whether work is the essence of the contract, 
 or whether it is the materials supplied. My impression is, 
 that in a case of a work of art, whether in gold, silver, mar- 
 
 1 Note : Suppose the work of a seem not, under the current line of 
 
 sculptor were a bust of a private decisions. 
 
 citizen, which would be of little or 2 1 C. & E., 287. See Wright v. 
 
 no value in the market, or, in fact, O'Brien, 5 Daly (C. P. C), 54. 
 
 to any one except the person for '1H. & N., 73; 25 L. J. Ex., 237; 
 
 whom it was made. Could it rea- Bensley v. Bignold, 5 B. & Aid., 
 
 sonably be said that the bust would 335. 
 be a sale of a chattel? It would 
 
CHAP. IV.] WHAT CONTEACTS WITHIN STATUTE OF FKATTDS. 75 
 
 ble or plaster, where the application of skill and labor is of 
 the highest description, and the material is of no importance 
 as compared with the labor, the price may he recovered as 
 worlc and labor and materials.'''' 
 
 He further said : " I am inclined to think that it is only 
 where the bargain is for goods thereafter' to be made, and 
 not where it is a mixed contract for work and materials to 
 be found, that Lord Tenterden's act applies." The reason, 
 perhaps, why very few cases on this subject are found in 
 the books is, that before that act the statute of frauds was 
 held not to apply to the case of goods not actually made, or 
 fit for delivery at the time of the contract. 
 
 Martin, B., in the same case, after stating what the de- 
 fendant was required to do under the contract, said : "It 
 seems to me that the true criterion is this, — • suppose there 
 was no contract as to payment, and the printer [the plaintiff 
 in the case] had brought an action to recover what he was by 
 law entitled to receive, would that be the value of the book 
 as a book? I apprehend not ; for the book might not be 
 worth half the value of the paper on which it was printed, 
 but he would be entitled to recover for his work, labor and 
 materials supplied; therefore this is, in strictness, work, 
 labor and materials done and provided by the plaintiff for 
 the defendant." 
 
 In commenting upon the above case, Mr. Justice Stephen 
 observes: "A book is more than a bare combination of ink 
 and paper. I should say that the materials used in making 
 it had ceased to exist as such, and that the new product 
 was the property of the employer, subject to the printer's 
 ljen and other remedies for the price of his labor." l 
 
 § 90. The test laid down by Pollock, C. B., " whether the 
 work and labor is the essence of the contract, or whether it 
 is the materials that are found," is irreconcilable with the 
 opinions of Blackburn and Compton, JJ., in Lee v. Griffin, 2 
 and is rejected by them. Mr. Benjamin remarks, also, that 
 
 1 1 Law Quarterly Review, 10. 2 1 Best & Smith, Q. B., 277; 30 
 
 L. J. Q. B., 202. 
 
76 SALES. [CHAP. IV. 
 
 this view cannot be supported, even in the extreme case put 
 by Martin, B., 1 of a portrait worth three hundred guineas on a 
 canvas worth 10s. Hesa} r s: "If the employer owned nothing 
 whatever that went into the composition of the picture; if 
 neither materials nor skill nor labor were supplied by him, 
 it is obvious that he cannot get title to the picture or any 
 property in it, except through a transfer of the chattel to 
 him by the artist for a price, and this is in law a contract of 
 sale. It cannot make the slightest difference in what pro- 
 portions the elements that compose the chattel, namely, the 
 raw material and the skill, are divided." 2 
 
 And he further observes that the test suggested by Martin, 
 B., in his opinion in Clay v. Yates, is accurate as far as it 
 goes. 
 
 § 91. In Blake v. Nicholson, 3 a printer was employed by 
 one Stratford to print eight thousand seven hundred and 
 fifty copies of a work. Stratford supplied the paper for 
 such printing from time to time as required. The printer 
 delivered five thousand nine hundred and eighty-seven cop- 
 ies; the rest remained in his own warehouse. Under the 
 requirement the printer made a separate charge for each 
 number of the work. 
 
 Stratford afterward became a bankrupt. There it was 
 held that the assignees of Stratford were not entitled to re- 
 cover from the printer the copies remaining in his possession 
 upon tendering to him so much as was due for the printing 
 of the copies in proportion to his charge for the whole. 
 
 Lord Ellenborough, C. J., said: "1 think the defendant 
 had a lien for the whole balance, the work being an entire 
 work in the course of prosecution, upon the same principle 
 that a tailor, who is employed to make a suit of clothes, has 
 a lien for the whole price upon any part of them. It would 
 be inconvenient if he was obliged to make stops in the course 
 of the work; the nature of the work affords a reason for his 
 general lien." And, added Le Blanc, J., the supplying the 
 
 i Clay v. Yates, 1 H. & N., 73. 3 3 M. & S., 167. 
 
 2 Benjamin on Sales, 106. 
 
C3AP. IT.] "WHAT CONTKACTS WITHIN STATUTE OF FEATJDS. 77 
 
 paper from time to time did not make it the less one entire 
 work. Clearly it was an entire contract, and out of the 
 statute of frauds. 
 
 § 92. So in Grafton v. Armitage, 1 where the plaintiff, a 
 working engineer, was employed by the defendant to devise 
 some plan for a machine for curving metal tubes for the 
 manufacture of a life-buoy which the defendant had in- 
 vented. The action was for work, labor and materials and 
 the debt due thereon. ' The particulars were, " for scheming 
 and experimenting for, and making a plan-drawing of, a 
 machine, etc., engaged three days, at one guinea per day, 
 31. 3s.; for workman's time in making, etc., and experi- 
 menting therewith, 11. 5s. ; for use of lathe for one week, 
 12s. ; for wood and iron to make the drum, and for brass 
 tubing for the experiments, 5s." 
 
 It was insisted by the defendant that the action should 
 have been case for non-acceptance of the article. s 
 
 Tindal, C. J., said that "here there never was any inten- 
 tion to make any thing that should properly become the 
 subject of an action for goods sold and delivered. But the 
 plaintiff was applied to to point out the proper mode of at- 
 taining a given object, and he brings his action for the work 
 and labor done by him, and the materials used in the per- 
 formance of that which he undertook to do." . . . He 
 thought the count for work and labor the proper one to 
 cover such a claim. 
 
 § 93. In distinguishing the above case from Atkinson v. 
 Bell, 2 which was a case where a manufacturer of machinery 
 was employed by the defendants to make two spinning- 
 frames, the chief justice observed that the substance of the 
 contract in that case was goods to be sold and delivered by 
 the one party to the other. In the last named case Bayley, 
 J., said, " if you employ another to work up his own ma- 
 terials in making a chattel, then he may dispose of the 
 produce of that labor and those materials to any other per- 
 
 12 C. B., 340. 28B. &C..277. 
 
78 SALES. [CHAP. IV. 
 
 son. No right to maintain any action vests in him during 
 the progress of the work; but, when the chattel has as- 
 sumed the character bargained for, and the employer has 
 accepted it, the party employed may maintain an action for 
 goods sold and delivered; or, if the employer refuses to ac- 
 cept, a special action on the case for such refusal." 
 
 And he held that the rule for entering a nonsuit must be 
 discharged. Coltman, Maule and Erie, JJ., concurred. 
 Coltman observed that, if this had been a contract by the 
 plaintiff to male a machine for the defendant, the proper 
 remedy would have been by an action for goods sold and 
 delivered, or an action for not accepting the machine. But 
 here the plaintiff was simpl}' employed to use his skill in 
 devising a mode of carrying out the defendant's invention. 
 
 It is laid down by Bayley, J., in Atkinson v. Bell, 1 that 
 to support an action for work and labor, that on which the 
 work is performed must be the property of the defendant, 
 the employer. 
 
 . But in the same case it was said by Maule, J., that, " In 
 order to sustain a count for work and labor, it is not neces- 
 sary that the work and labor should be performed upon 
 materials that are the property of the plaintiff {sio clearly 
 meaning defendant), or that are to be handed over to him." 
 
 § 9i. In Smith v. Surman 2 the defendant agreed to pur- 
 chase a quantity of timber of the plaintiff; the verbal con- 
 tract was held to be within the statute, notwithstanding a 
 part of the trees were not felled at the time of the bargain, 
 and were afterwards to be cut by the vendor. The court 
 denied that it was ".a mixed contract for goods and chat- 
 tels, and for work and labor to be bestowed and performed " 
 by the vendor for the vendee, but that it was " a contract 
 for the future sale of the timber, when it should be in a fit 
 state for delivery. The vendor, in felling the timber and 
 preparing it for delivery, was, in my opinion, doing work 
 for himself and not for the vendee." 
 
 l 8B.&C.,m. *9B.&C.,561. 
 
CHAP. IV.J "WHAT CONTRACTS WITHIN STATUTE OF FRAUDS. 79 
 
 § 95. "Watts v. Friend J is still stronger. There the con- 
 tract was for the sale of a crop to he raised, the seed not 
 having yet been put into the ground. It was held to be a 
 sale, and void under the statute of frauds, without writing, 
 earnest or part payment. 
 
 Littledale, J., said : " A contract for mere work and labor 
 is not expressly mentioned, and may therefore not be within 
 the statute; but where the contracting parties contemplate 
 a sale of goods, although the subject-matter, at the time of 
 making the contract, may not exist as goods, out is to he 
 wrought into that by the vendor's bestowing worlc and labor 
 iipon his raw materials, that, in my opinion, is a case 
 within the statute;" and, he further added, " it appears to 
 me to be sufficient, if, at the time of the completion of the 
 contract, the subject-matter, be goods, wares and merchan- 
 dises." 
 
 In Marshall v. Green, 2 Lord Coleridge, C. J., referring to 
 the case of Smith v. Surman, says: "The only distinction 
 that I can see between that and the present case, is that 
 there the trees were to be cut by the vendor;" but Little- 
 dale, J., held that " if in that case the contract had been 
 for the sale of the trees, with a specific liberty to the vendee 
 to enter the land to cut them, it would not have given him 
 an interest in the land within the meaning of the statute." 
 
 "It may be difficult in many cases," said Colt, J., in 
 White v. Foster, 3 " to determine, from the terms of the con- 
 tract, whether the parties intend to grant a present estate 
 in the trees while growing, or only a right, either definite 
 or unlimited, as to time to enter and cut, with a title to the 
 property when it becomes a chattel. If the former be the 
 true construction, then the contract comes within the stat- 
 ute, and must be in writing; if the latter, then, though 
 wholly oral, it may be enforced." 
 
 1 5 Man. & Eyl., 439, and 10 Barn. 2 1 C. P. Div., 40. 
 & Cres., 446, S. C. 3 102 Mass., 378. 
 
OHAPTEE V. 
 
 OF CONTRACTS WITHOUT THE STATUTE OF FRAUDS. 
 
 § 96. A general rule governing contracts of sale. 
 
 97. Of the sale of goods not in solido; case of Sewall v. Fitch. 
 
 98. Example of a contract without the statute of frauds. 
 
 99. The same subject continued. 
 
 100. The same subject continued. 
 
 101. Contracts to manufacture goods are not within the statute; the 
 
 important case of Parsons v. Loucks. 
 
 102. The same subject continued. 
 
 103. Same subject ; construction of the words, " sale of any goods." 
 
 104. Same subject ; a dissenting opinion. 
 
 105. Instance of an article being manufactured and destroyed by fire 
 
 before delivery. 
 
 106. What are contracts for work and labor. 
 
 107. Contracts in part good and part bad may be available pro tanto, 
 
 when. 
 
 108. What is a sale, and what an order to manufacture goods. 
 
 109. Goods made upon a special order not within the statute. 
 
 110. Another example ; Pierce v. Bouton. 
 
 111. Parol contract of partition of a line fence is valid ; novel case of 
 
 Ivins v. Ackerson. 
 
 112. In Connecticut a contract to manufacture is held not a contract 
 
 of sale ; form of action in such a case. 
 
 113. Right of action where article is manufactured. 
 
 114. Of contracts of work and labor, where profits on a sale are to be 
 
 divided. 
 
 115. Contracts for the sale of produce to be raised ; law in Indiana. 
 
 116. Contracts held to be without the statute where work and labor 
 
 to be done ; some Maryland cases. 
 
 117. Whether an interest in a pew in church is personalty. 
 
 118. Contract of work to be paid for in chattels. 
 
 119. Contract of a partner to pay the debts of the firm, not within the 
 
 statute. 
 
 120. A sale must be complete within the statute to sustain an action 
 
 upon. 
 
 121. Where doubts exist as to the contract being valid, the contract 
 
 will ordinarily be sustained ; Phipps v. McFarlane. 
 
 122. The work of an artist not within the statute of frauds. 
 
CHAP. V.] CONTRACTS WITHOUT STATUTE OF FRAUDS. 81 
 
 § 123. The same subject continued. 
 
 124. Same subject ; the case of Turner v. Mason ; important ruling by 
 
 Campbell, C. J. 
 
 125. Contract with a tailor to make a coat not within the statute. 
 
 126. Contract not within the statute ; damages may be recovered for 
 
 breach of. 
 
 127. Contract to cut timber, work and labor, not within the statute. 
 
 128. Agreement to share in the profits and losses of an adventure, 
 
 without the statute. 
 
 129. Various cases as to contracts partly void and partly valid, under 
 
 the statute of frauds. 
 
 130. Executory contract involving a less sum than provided for in the 
 
 statute of frauds — is without the statute. 
 
 131. Contract to convey certain land in consideration of services, void ; 
 
 right of action for services. 
 
 132. Sale of opera tickets ; whether merely personal or an interest in 
 
 land. . 
 
 133. Part performance of contract ; the statute not allowed to become 
 
 an instrument of fraud. 
 133a. Requisites of part performance to take case out of the statute. 
 
 134. A void contract cannot be enforced by the party to it, much less 
 
 by a third person ; under the statute of frauds. 
 
 135. Another illustration; a different rule. 
 
 § 96. There is a universality in the rule, as will appear 
 by well established cases, that if the contract is for the work 
 of an artisan, or for the manufacture of an article, which, 
 except for the contract or order, would never have been 
 made, namely, an article which is made upon a special order, 
 and not such an article as is usually sold in the market, or 
 made by the manufacturer, the contract is without the oper- 
 ation of the statute of frauds, and need not be evidenced 
 by any writing. 1 
 
 i Parker v. Schenck, 28 Barb. , 39 ; C. , 17 "Weekly Dig. , 445 ; 1 McMul- 
 
 Edwards v. Grand Trunk R'y, 48 lare's Eq., 87; 37 Am. R., 548; Don- 
 
 Me., 380; Goddard v. Binney, 115 egani v. Molinelli, 14 Lon. Com. 
 
 Mass., 450; Finney v. Apgar, 31 N. Jur., 106; Phipps v. McFarlane, 3 
 
 J. Law R., 270; Meincke v. Falk, Minn., 100; Pitkin v. Noyes, 48 N. 
 
 55 Wis., 427; 26 Alb. Law Jour., H., 297; Prescott v. Locke, 51 N. 
 
 510; Donnell v. Hearn, 12 Daly, H., 96; Fickett v. Swift, 41 Me., 
 
 230; 24 Daily Reg., No. 14; S. C, 68; Paige v. O'Neil, 12 Cal., 483; 
 
 17 Weekly Dig., 463; Pierce v. Stevenson v. Irwin, 15 id., 503. 
 Bouton, 24 Daily Reg., No. 84; S. 
 6 
 
82 SALES. [chap. v. 
 
 Thus, in the above cases it is in effect held that where a 
 contract is made for an article not existing at the time in 
 solido, but which article is to be made or manufactured ac- 
 cording to order, and as a thing distinguished from the usual 
 business of the maker or manufacturer, the contract is in 
 substance not of sale, but for work, labor and materials. 
 
 § 97. The action of Sewall v. Fitch J was in assumpsit for 
 damages for not delivering a quantity of cut nails according 
 to the contract. The case was tried before Duer, C. J. 
 There, one Greele, the agent of the plaintiffs, but without 
 disclosing their names, contracted with the defendants 
 through their clerk for three hundred casks of Thames 
 Manufactory cut nails at five and a half cents per pound. 
 
 Greele was told that the nails w r ere not on hand, but could 
 be soon made, and obtained from the manufactory at Nor- 
 wich, on the opening of navigation. Greele told the clerk 
 that he wanted the nails to fill an order. He testified in 
 effect on the trial to the above facts, and further, that im- 
 mediately upon making the agreement he reduced the same 
 to writing and sent the same to the plaintiffs, for whose 
 benefit he alone acted. 
 
 The memorandum was lost, but it appeared in the case 
 that Greele disclosed the name of his principals to the de- 
 fendants. The court below declared the memorandum to 
 be sufficient; that the questions for the jury were: 1. 
 "Whether the contract was proved ; and 2. As to what dam- 
 ages were sustained, if a,nj. 
 
 The plaintiff had judgment; the defendant appealed. 
 
 On the appeal, Savage, C. J., held that the contract was 
 not for the sale of goods then in solido; but for work and 
 labor, in part, in the making of the articles to be delivered. 
 A distinction in such cases is well settled both in England 
 and New York state; that such a contract is without the 
 statute of frauds. The motion for a new trial was denied. 
 
 § 98. Another good illustration of the same doctrine is 
 
 Higgins ^Murray, 2 where an order was given for a set of 
 
 18 Cow. (N. Y.),315; Donovan v. 2 73 N. Y., 252; 4 Hun (N. Y), 
 Willson, 26 Barb., 138. 566. 
 
CHAP. T.J CONTRACTS WITHOUT STATUTE OF FRAUDS. 83 
 
 circus tents. After they were made according to order, the 
 plaintiff notified the defendant of their completion. No 
 place of delivery was agreed upon, nor was anything said 
 at the time of the contract, as to payment. 
 
 After holding the tents for two months, subject to the 
 defendant's order, the plaintiff received a letter from the 
 defendant requesting him to ship them to Bath, Maine, per 
 freight, " either by boat or by cars." Subsequently the 
 plaintiff was directed to ship them to Lewiston. The tents 
 were accordingly shipped by boat, under a bill of lading 
 requiring the price to be paid by the defendant to the car- 
 rier on delivery. The tents were destroyed by fire while 
 on the boat at Portland. 
 
 Upon these facts the plaintiff was erroneously nonsuited. 
 
 The delivery of the tents to the carrier, as directed by the 
 defendant, was tantamount to a delivery to him. The con- 
 tract, as established, was clearly not within the statute of 
 frauds, as it was for the manufacture of articles out of ma- 
 terials entirely furnished by the plaintiff. 
 
 § 99. As no time was fixed for deliver (in the case of 
 Higgins v. Murray referred to in the preceding section), un- ( 
 der the well considered decisions the plaintiff was entitled * 
 to be paid for the tents as soon as they were completed 
 and notice thereof given to the defendant. From that time 
 the tents became the defendant's property, subject to the 
 plaintiff's lien, and a right of action accrued immediately. 
 No memorandum in writing was necessary, for it was, 
 strictly speaking, a contract to manufacture, and had been 
 fully performed by the plaintiff. " What the plaintiff after- 
 ward retained," said Daniels, J., " was simply a lien for 
 the price, which was not inconsistent with its recovery by 
 action. And all that he did by shipping the tents subject 
 to the payment of the price was to retain and preserve 
 that lien as his security upon the property. By the fair im- 
 port of the agreement, delivery and payment were to be 
 simultaneous acts, and that was all which the bill of lading I 
 secured. 
 
84: SALES. [CHAP. V. 
 
 " The contract, in judgment of law, bound the defendant 
 to take and pay for the tents upon receiving notice that 
 they were completed. Failing to do this he violated his con^ 
 tract, and the plaintiff was entitled to recover, if the jury 
 believed his evidence, even though the property was after- 
 ward destroyed, as long as it was exposed to the risk en- 
 countered by it, without his fault and in direct obedience 
 to the orders of the defendant." 
 
 The judgment was reversed and a new trial ordered. 
 
 § 100. On appeal (in the last mentioned case) to the 
 court of appeals, Church, 0. J., affirmed the judgment of 
 the general term, holding that the important question to 
 be determined was, when the liability of the defendant at- 
 tached. That if the article had been burned during the 
 progress of construction, no action would lie, as the con- 
 tract was an entirety. 
 
 The same rule would apply if the contract had been to 
 make and deliver at a particular place, and loss ensued be- 
 fore such delivery. 
 
 " But," he says, " when the contract is fully performed, 
 both as it respects the character of the article, and deliv- 
 ery at the place agreed upon or implied, and the defend- 
 ant is notified, or if a specific time is fixed, and the con- 
 tract is performed within that time, upon general principles 
 I am unable to perceive why the party making such a con- 
 tract is not liable." The liability was complete when the 
 order for the shipment was given. 1 
 
 § 101. In further illustration of the doctrine take the 
 important case of Parsons v. Loucks. 2 
 
 There the defendants agreed to manufacture, and deliver 
 to the plaintiffs, at New York, twenty thousand pounds of 
 book paper, of a kind similar to that which they had previ- 
 ously manufactured for them. 
 
 It was agreed that the paper should be manufactured and 
 delivered as soon as the defendants had completed certain 
 
 iSee Adlard v. Booth, 7 Car. & 2 48 N. Y., 17; and see cases there 
 P., 108. cited. 
 
CHAP. V.J CONTRACTS "WITHOUT STATUTE OP FRAUDS. 85 
 
 orders on hand, which would be in about " three weeks " 
 from the date of the contract. Thirteen cents a pound, less 
 a discount of five per cent., was to be paid for the paper 
 when delivered. 
 
 About two months after the contract was made the de- 
 fendants informed the plaintiffs that they could not per- 
 form the contract ; and this action was brought to recover 
 damages for the breach. 
 
 The difference between the contract price and the market 
 value of the paper at the time of the breach, as shown on 
 the trial, amounted to $1,930, for which the plaintiffs recov- 
 ered judgment. 
 
 § 102. On appeal (in the last mentioned case) it was olaimed 
 by the appellants, that, as the contract was not in writing, 
 it was void within the statute of frauds. The respondents 
 contended that the contract was for work and labor, and 
 therefore not within the statute. 1 
 
 Hunt, C, held that the statute of frauds did not apply to 
 such contracts. 
 
 "The distinction," he said," is between the sale of goods in 
 existence at the time of making the contract and an agree- 
 ment to manufacture goods. The form-er is within the pro- 
 hibition of the statute and void unless it is in writing, or 
 there has been a delivery of a portion of the goods sold, or 
 a payment of the purchase price. The latter is not." 
 
 § 103. The New York statute of frauds specifies the 
 " sale of any goods," assuming that the goods are already 
 in existence at the time of the contract. This well settled 
 distinction has been adhered to since the early case of 
 Crookshank v. Burrell. 2 
 
 Parsons v. Loucks is not one of the border cases, as are 
 Downs v. Ross, 3 and Garbutt v. Watson. 4 
 
 It was a simple naked agreement by the defendants to 
 
 iSewall v. Fitch, 8 Cow., 215; 4 5B. &A..613; Phipps v. McFar- 
 
 Mead v. Case, 33 Barb., 202. lane, 3 Minn., 109; Barnett v. Nye, 
 
 2 18 Johns., 58. 4 Greene (Iowa), 410. 
 »23 Wend. ,272. 
 
86 SALES. [chap. v. 
 
 manufacture at their own mills, and deliver at a specified 
 price, a lot of paper of specified sizes, no part of which, was 
 in existence when the contract was made. 
 
 The judgment was affirmed in favor of the plaintiff. 
 Gray, C, wrote an elaborate dissenting opinion. 
 
 Under the current decisions the contract was distinct- 
 ively one for work and labor, and accordingly was not 
 within the statute of frauds. 
 
 § 104. Gray, 0. (dissenting), in Parsons v. Loucks, con- 
 ceded that, prior to the case of Downs v. Ross, supra, 
 _the contract would, by an adherence to the rule of con- 
 struction established in New York, have been held to be a 
 contract for work and labor. But that decision overturned 
 the former cases, and he thought the court should be gov- 
 erned by that case and declare the contract within the stat- 
 ute, and so reverse the judgment. 
 
 The mere fact that the materials out of which the paper 
 was to be manufactured were not designated, or may not 
 have been in existence, he considered immaterial. 
 
 He thought, if in the sale of an article to be manufact- 
 ured, or partly manufactured, out of the vendor's own ma- 
 terials, the proportion in which the labor to be bestowed 
 to increase the value of the thing sold, is to be taken into 
 consideration, it would be difficult to furnish a test as to the 
 proportion, in determining the character of the contract, as 
 between a sale and for work and labor. 
 
 § 105. The plaintiff, in Goddard v. Binney, 1 agreed to 
 make a buggy for the defendant and to deliver it at a stated 
 time. 
 
 The defendant gave the plaintiff specific directions as to 
 how he wanted the buggy made, as to style and finish, 
 color of lining, the kind of seat, and the monogram for the 
 buggy. 
 
 Some time before it was finished, the plaintiff met the 
 defendant and asked him if he might sell it, to which 
 the defendant answered that he would Jceep the buggy. 
 
 1 115 Mass., 450. 
 
CHAP. V.] CONTRACTS WITHOUT STATUTE OF FRAUDS. 87 
 
 The defendant was notified when the buggy was finished, 
 and a bill was sent for the same, which he retained and 
 promised to see the plaintiff about it. 
 
 "While the buggy was in the plaintiff's possession it was 
 destroyed by fire. 
 
 It is clear that, if the buggy had been destroyed before 
 it was completed, and before such notice, no recovery could 
 be had. 
 
 Ames, J., considered the case much stronger than Mixer 
 v. Howarth, 1 for it was neither intended nor adapted for the 
 general market. That the statute of frauds did not apply, 
 for the reason the contract was not of sale, and the prop- 
 erty in the buggy had actually passed to the defendant. 
 
 Semble, in Baker v. Bourcicault, 2 where the defendant had 
 not received notice of the completion of certain cards and 
 only agreed to pay for them when they were delivered, the 
 defendant prevailed in the action. 
 
 § 106. In Spencer v. Cone, 3 the contract was for the 
 manufacture of certain machines under a special order ; the 
 manufacturer agreeing to furnish the materials for the pur- 
 pose at a specified price. It was held to be a contract for 
 labor and materials,. and not of sale. 
 
 The decision is in harmony with Mixer v. Howarth, 4 
 where there was a contract for the construction of a car- 
 riage from materials partly wrought at the time of the con- 
 tract, but not yet put together ; and Chief Justice Shaw 
 decided that it was a contract for work and labor. 
 
 A contract made with a mechanic, or manufacturer, to 
 construct a machine, or make an article, which is clearly 
 special in its character and construction, is uniformly held 
 to be a contract for work and labor and not of sale. 5 
 
 § 107. In Irvine v. Stone, 6 where no recovery for the 
 
 121 Pick., 205. 4 21 Pick., 205; Muckey v. Ho- 
 
 2 1 Daly (N. Y. C. P.), 23. wenstine, 3 N. Y., 28. 
 
 si Met. (42 Mass.), 283 (1840); 5 Parker v. Schenck, 28 Barb., 
 
 Abbott v. Gilchrist, 38 Me., 260; 38. 
 
 Crookshank v. Burrell, 18 Johns. 6 6Cush., 508. 
 
 (N. Y.), 58. 
 
88 SALES. [chap. v. 
 
 coal shipped could be had, it was claimed by the plaintiff 
 that the cost of transportation ought to be recovered; but 
 Metcalf, J., decided that it could not be. The part which 
 respects the transportation, said the court, stands wholly on 
 the other part which respects the sale, and which is invalid, 
 and both must fall together. The good part of the con- 
 tract cannot practically be severed from the bad and sepa- 
 rately enforced. 
 
 "Where one part of an agreement is valid, and another 
 part is invalid under the statute of frauds, it seems to have 
 been held in several cases that it will avail pro tanto, unless 
 the statute, by necessary implication, or expressly, renders 
 the whole void ; and where the valid part can be separated 
 from the invalid, " and be enforced without injustice to the 
 defendant." 1 
 
 § 108. The action of Joy v. Schoss 2 was brought to re- 
 cover damages for the non-delivery of certain goods, known 
 as Salisbury suitings. 
 
 The plaintiffs were merchants and agents of the Essex and 
 Hamilton Mills, in which they owned stock. The mills made 
 up a line of goods for the clothing trade, similar to the sam- 
 ples upon which the alleged sale was made. 
 
 The goods were not in existence at the time of the con- 
 tract, nor was anything then said as to their being manu- 
 factured. But it was assumed in the case that they were 
 to be manufactured. 
 
 The plaintiffs were in the habit of taking orders for goods 
 and charging them directly to the mills ; and the orders 
 were then executed under the plaintiffs' directions. 
 
 The principal question involved in the case was, whether 
 
 i Duncan v. Blair, 5 Denio, 196 ; may be prohibited by the statute of 
 
 Hobbs v. Wetherwax, 38 How. (N. frauds. Eand v. Mather, 11 Cush., 
 
 Y.) Pr„ 385; Fuller v. Eeed, 38 7; Walker v. Lovell, 28 N. H„ 138: 
 
 Cal., 99; Noyes v. Humphreys, 11 . Boyd v. Eaton, 44 Maine, 51; Pecker 
 
 Grattan, 636; Page v. Monks, 5 v. Kennison, 46 N. H. , 488 ; Haynes 
 
 Gray, 492. But, if any part of a v. Nice, 100 Mass., 327. 
 
 contract is valid, it will avail pro 2 15 Abb. N. C, 373; Meincke v. 
 
 tanto, though another part of it Falk, 55 Wis., 427. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FRAUDS. 89 
 
 the transaction constituted a sale of goods, or merely an or- 
 der to manufacture. 
 
 As much of the business between jobbers and their custom- 
 ers who manufacture clothing is conducted in a similar 
 manner, the question was quite important. 
 
 The court held that, upon the facts as presented, it fol- 
 lowed from an inevitable sequence that the plaintiffs were 
 the actual manufacturers, so far as these defendants were con- 
 cerned, and for the purposes of the action. The test which 
 is to be applied to these cases, as enunciated by the New 
 York decisions, said the court, and in further view of the 
 facts as developed by the evidence affecting the question of 
 manufacture on the part of the plaintiffs, the case did not 
 come within the provisions of the statute of frauds, and ac- 
 cordingly a cause of action existed in behalf of the plaint- 
 iffs. 
 
 The judgment dismissing the complaint appealed from 
 was reversed. 
 
 § 109. In Deal v. Maxwell l a verbal contract was made 
 whereby the plaintiffs were to procure the materials of a 
 specified quality ; to manufacture it and deliver two tons of 
 " stocking shoddy " to the defendant, as wanted, for which 
 the defendant agreed to pay twenty cents per pound. 
 
 The plaintiffs manufactured the shoddy, but the defend- 
 ant refused to accept it. 
 
 The principal defense in the case was, that the contract 
 was void within the statute of frauds. 
 
 The court held that it was valid. 
 
 This was a case of special manufacture. The essence of 
 the contract being that the manufacturer was to bestow 
 special labor and skill upon the manufacture, the contract 
 did not fall within the operation of the statute. The goods 
 were out of the ordinary and usual course of the business of 
 the plaintiffs. 
 
 151 N. Y., 652; but see Fitzsimmons v. Woodruff, 1 N. Y. Supm. 
 Ct., 3. 
 
90 SALES. [OHAP. V. 
 
 The above case, and also Seymour v. Davis, 1 and Parsons 
 v. Loueks, 2 it has been said, are not sustained by the decis- 
 ion of any other state. 3 
 
 §110. In Pierce v. Bouton 4 the plaintiffs were manu- 
 facturers of felt goods in Pennsylvania, having a store in 
 New York. 
 
 A sample of certain woven goods was sent by the de- 
 fendant to the plaintiffs, with the inquiry whether they 
 could imitate them in felt. The plaintiffs finished sam- 
 ples of the goods desired, and the defendant gave a verbal 
 order for seventy-five pieces of them. After a portion had 
 been delivered, the plaintiffs called on the defendant to col- 
 lect the price for the portion delivered, but were put off on 
 the ground that the goods had not been inspected. The 
 defendant afterward refused to accept them as not being 
 uniform in width. 
 
 As shown at the trial, the plaintiffs did not deal in such 
 goods, and the manufacture of them required a departure 
 from the usual business of manufacturing. 
 
 The court held the contract to be without the statute of 
 frauds ; that it was a contract for work and labor. 
 
 The governing principle of the above case was the same 
 as in Deal v. Maxwell. 5 
 
 § 111. In Ivi ns v. Ackerson 8 the single question presented 
 was, whether an unwritten partition of a line fence, made 
 by the owners of contiguous land, is, under the statute of 
 frauds,' valid or not. Against the validity of such a con- 
 tract it was urged that it was void by force of the statute, 
 which declares that no action shall be brought " upon any 
 contract or sale of lands," etc., unless the contract be in 
 writing. And further, that fences were a part of the free- 
 
 1 2 Sandf . , 242. 5 51 n. y. , 652. 
 
 24 Rob., 217 ; 48 N. Y. ( 17. 6 9 Vr. (38 N. J.), 321 ; The Act, 
 
 3 1 Reid on Stat, of Fr., 249. Nix. Dig., 332, p. 4. See, also, 
 
 *17 Weekly Dig., 445; 24 Daily Hallen v. Runder, 1 C, M. & R., 
 
 Reg., No. 84. See, also, Donnell v. 266; Evans v. Roberts, 5 B. & 0., 
 
 Hearne, 17 Weekly Dig., 463; 3 829. 
 
 Parsons on Cont., 54. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FRAUDS, 91 
 
 hold, and go with the title, and therefore a contract concern- 
 ing them was void. But Beasley, C. J., said : " This view is 
 specious but it is not sound. It rests upon two assumptions, 
 neither of which, I think, can be conceded. The first of 
 these is that a fence is, out and out, a part of the land. This 
 is not so; it is a fixture, and when annexed by the owner, 
 will, like similar adjuncts, run with the land; but it has been 
 abundantly adjudged that oral contracts touching fixtures 
 of this nature are not inoperative by reason of the statute in 
 question.' 1 '' 
 
 To hold that a fence, in every respect, is the same as the 
 land, and that contracts with but a collateral reference to 
 land are avoided by the statute of frauds,, is too illogical to 
 be entertained. The purpose of the act is well expounded 
 by Spencer, J., in Frear v. Hardenburgh. 1 He says : " The 
 statute could have in view to avoid such agreements in re- 
 lation to lands, as rested in parol, only where some interest 
 was to be acquired in the land itself, and not such as were 
 collateral, and by which no kind of interest was to be gained 
 by the agreement in the land." 
 
 The court held that the distribution of the fence in ques- 
 tion, made by the parties referred to, was valid in law. 
 
 Judgment for the plaintiff was affirmed. 
 
 § 112. In a well considered case in Connecticut, Allen v. 
 Jarvis, 2 it was held that a contract for the manufacture of 
 certain articles, where the manufacturer was to furnish the 
 materials, is not a contract of sale, but is without the statute 
 of frauds. This was an action of assumpsit. 
 
 The plaintiff was employed by the defendant to manu- 
 facture a certain number of instruments called "surgical ad- 
 justers." After the work had proceeded and was partly fin- 
 ished, the defendant notified the plaintiff to discontinue any 
 further work upon the instruments. At the time, the plaint- 
 iff had on hand a large amount of parts or portions of said 
 instruments in different stages of manufacture, which were 
 
 15 Johns. 275. 2 20 Conn., 38. See Atkinson v. 
 
 Bell, 8 Barn. & Cress., 377. 
 
92 SALES. [chap. v. 
 
 wholly useless to him. Also, twenty of the instruments 
 were already completed, which the defendant refused to ac- 
 cept. 
 
 Assuming, says Storrs, J., that, in respect to the unfin- 
 ished instruments, there was a fulfillment by the plaintiff of 
 the contract, so far as he had proceeded with them, when 
 he was stopped by the defendant, the question presented by 
 the facts, as thus claimed to be proved by the plaintiff, is 
 whether, if one employs another to make a particular chattel 
 out of the materials of the latter, and during the progress 
 of the work, and before it has assumed the character bar- 
 gained for, it is stopped by the employer, by whom it has 
 not been accepted and to whose use it has not in any man- 
 ner been appropriated, the party employed may maintain 
 an action for work and labor generally against the em- 
 ployer. The action cannot be maintained, but that a special 
 action on the case against the employer is the appropriate 
 action. 
 
 § 113. In Donnell v. Hearn, 1 where the defendants agreed 
 to pay for seven bracket lamps to be manufactured by the 
 plaintiffs for them, and which were not such lamps as were 
 usually kept in stock and were not usually manufactured 
 for the purposes of sale by the plaintiffs, it was held by Yan 
 Brunt, J., that the contract must be considered as one for 
 labor and materials, rather than for the sale of personal 
 property as such. 
 
 It is well settled that acceptance is not necessary, where 
 the contract is fully performed, to entitle a manufacturer to. 
 sue for the contract price of the article so to be manufact- 
 ured. So, where a contract has been executed, whereby the 
 buyer of the personal property is placed in actual possession 
 of the same, the statute of frauds has no application. 8 And 
 whether or not such facts actually exist is for the jury. 8 
 
 i 12 Daly, 230. See, also, Hig- 2 Huntley v. Huntley, 114 IT. S., 
 gins v. Murray, 73 N. Y., 252; Be- 394. 
 
 ment v. Smith, 15 Wend., 493. 3 Weightman v. Caldwell, 4 
 
 Wheat., 85. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FRAUDS. 93 
 
 § 114. Where the verbal contract was that, if the plaint- 
 iff would help the defendant to get certain hogs to market, 
 he should have, as pay for his services, one-third of the 
 profits made on the sale of the hogs, the contract was held 
 to be without the statute of frauds. 1 
 
 Again, where certain staves were to be manufactured out 
 of a particular lot of timber, it was held not to be a contract 
 for the sale of goods, etc., but for their manufacture and de- 
 livery, and was held to be without the statute. 2 
 
 So, also, a contract in parol to pay for improvements 
 made upon land was decided not to be within the statute of 
 frauds. 3 
 
 In Crockett v. Scribner, supra, the court observed, the 
 fact being found that the contract was for the manufacture 
 and delivery. of certain staves, as above stated, was held 
 conclusive upon the parties. And under the decisions, it 
 was held that in Maine the contract was without the statute. 
 
 And, again, an agreement was held not within the statute 
 where the defendant was to share in the profits with the 
 plaintiff, in a certain adventure. 4 
 
 § 115. In Bowman v. Conn, 5 the defendant verbally 
 agreed to sell whatever broom-corn should be raised on 
 twenty-five acres of land, and deliver the same in merchant- 
 able condition at Madison, in the quantity of a ton every 
 two weeks, at $60 per ton, payable on delivery. 
 
 The statute of frauds was pleaded. There was no memo- 
 randum in writing, nor any earnest given to bind the bar- 
 gain. The court cited Watts v. Friend, 6 with approval. 
 There the facts were similar, and it was held that the con- 
 tract was within the statute. There the defendant agreed 
 to sow a quantity of turnip seed on his land, the seed being 
 
 iKelsey v. Henry, 48 Ind., 37; ^Godeffroy v. Caldwell, 2 Cal., 
 
 Friend v. Pettingill, 116 Mass., 489. 
 
 515. * Coleman v. Eyre, 45 N. Y., 40. 
 
 2 Crockett v. Scribner, 64 Me., ssind., 58. 
 
 447; Abbott v. Gilchrist, 38 Me., siOBarn. & Cress., 446; 5 Man. 
 
 260; Goddard v. Binney, 115 Mass., & Ryl., 439; Pitkin v. Noyes, 48 N. 
 
 450. H., 294. 
 
94: SALES. [chap. v. 
 
 furnished by the plaintiff, and sell to the plaintiff the entire 
 crop of seed produced from such crop at a guinea per bushel. 
 There were produced therefrom two hundred and forty 
 bushels. Principally upon the ground that the seed was to 
 be severed before being transferred, it was held to be a con- 
 tract falling within the meaning of the statute. 
 
 In Indiana the statute of frauds is substantially the same 
 as that of 29 Oar. II., section 17, and the English con- 
 struction has generally been followed in that state. 
 
 In the above case the judgment in favor of the defendant 
 was affirmed. 
 
 § 116. In Eentch v. Long, 1 the contract was for two 
 thousand bushels of corn, which at the time was in the 
 field ungathered and unshucked, and which, by the con- 
 tract, the plaintiff was entitled to have delivered to him at a 
 future time, gathered and shucked. 
 
 As at the time of the contract the corn was not in a con- 
 dition for delivery, and as certain work and labor were 
 necessary to be done upon it, which formed a part of the 
 consideration for the price to be paid, the court held the 
 contract to be without the statute. 
 
 The case falls directly within the principle established 
 in Eichelberger v. McCauley, 2 where a contract was made 
 for the delivery of wheat at a future time, which then was 
 in the stack unthreshed, and it was held not within the stat- 
 ute of frauds. The case was decided upon the ground that 
 work and labor being necessary to prepare the wheat for 
 delivery, it was not a sale of goods, etc., within the mean- 
 ing of the statute. The court said: The distinction be- 
 tween mere contracts of sale of goods, and those contracts 
 for [the sale of goods where work and labor are to be 
 bestowed on them previous to delivery, and subjects are 
 blended together, some of Avhich are not in the contempla- 
 tion of the statute, has too long prevailed to be at this 
 day questioned. 
 
 127 Md., 188. 2 5 H. & J., 213. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FRAUDS. 95 
 
 The statute of frauds of Maryland being in effect the 
 same as the English statute, the English decisions were fol- 
 lowed. It need hardly be said, however, that a different 
 rule obtains in New York and some other states. 
 
 § 117. In First Baptist Church of Ithaca v. Bigelow, 1 
 the court say, that although the interest acquired in a pew 
 in a church is a limited and qualified interest, it is, notwith- 
 standing, an interest in real estate, and requires a writing 
 to support it, if the interest extends beyond a lease for one 
 year; where the auction in this case took place, parol leases 
 for three years were valid. In this case it purported to be 
 unlimited, and therefore a parol agreement for the purchase 
 was held to be invalid. . In some cases in Maine it has been 
 decided the same way. 2 
 
 § 118. Sutherland v.. Carter 3 was an action in replevin 
 for a yoke of oxen held by the defendant under an agree- 
 ment for their purchase. The plaintiff let the defendant 
 have the oxen upon the verbal agreement that the defend- 
 ant should own them as soon as he had done a sufficient 
 amount of clearing on the land of the plaintiff's wife, to 
 make up their value, which was fixed at $100. 
 
 The work was done by the defendant. The court below 
 held that the agreement was void under the statute of frauds. 
 But Campbell, J., in reviewing the judgment on appeal 
 said : " "We cannot see how the statute of frauds covers such 
 a case." The property having been delivered to the defend- 
 ant upon a certain condition, the oxen became his as soon as 
 it was performed. 
 
 The judgment in favor of the plaintiff was reversed. 
 
 § 119. "Where a partner by a valid agreement sold all of 
 his interest in the business of the copartnership to the other 
 partner, the other agreeing to pay all the outstanding debts 
 
 116 Wend., 32. I nd - Railroad v. Forbes, 30 id., 
 
 2Freeport v. Bartol, 3 Me., 340; 176; Brown v. George, 17 N. H., 
 
 Gray v. Baker, 17 Me., 435. 128 ; Weyand v. Crichfielu, 3 Grant, 
 
 3 52 Mich., 151; Detroit, Hills. & 113. 
 
96 SALES. [chap. t. 
 
 of the firm, the court held the agreement to be without the 
 statute of frauds. 1 
 
 § 120. As to what cases properly fall within the statute 
 of frauds, the case of Carman v. Smick 2 is another good 
 illustration. There a verbal contract was made, whereby 
 the defendant agreed to sell to the plaintiff a pair of oxen, 
 the plaintiff agreeing to pay for them when weighed. The 
 defendant refused to deliver the oxen, and the plaintiff 
 brought his action for damages. 
 
 The court of common pleas affirmed the judgment of the 
 court below in favor of the plaintiff. In the supreme court 
 of judicature, however, the judgment was reversed. 
 
 The contract was entirely executory. 
 
 The facts in the case were similar to those in Alexander 
 v. Comber, 3 where the plaintiff had agreed to buy certain 
 sheep, and to take them away at another time, and the de- 
 fendant sold them to another person. 
 
 The court, Hornblower, C. J., in Carman v. Smick, decided 
 that the statute of frauds prevented any property from 
 vesting in the plaintiff, so as to enable him to maintain 
 trover, there being neither earnest paid, part delivery, nor 
 any memorandum in writing. 
 
 It is well established that in order to sustain an action it 
 must appear that the sale is complete within the statute of 
 frauds, so that the right of property in the thing, as well as 
 the risk of loss, are transferred to the vendee. 4 
 
 § 121. In Phipps v. McFarlane, 5 as it appeared, the 
 plaintiff agreed to furnish materials for four houses, of a 
 particular kind and size, and prepare and fit such materials 
 for putting them up at P. B. & Co.'s mill, in Minneapolis, 
 as soon as the materials could be prepared and fitted, and 
 the defendant agreed to pay $200 for each of said houses so 
 prepared. 
 
 13 Mich., 318. See, however, *Pike v. Vaughn, 39 Wis., 503; 
 
 Doty v. Martin, 32 id., 462. Morrow v. Reed, 30 id., 81, 90; 
 
 2 15 N. J. R., 253. Sewell v. Eaton, 6 id., 490. 
 
 UH. Bl., 20. 5 3 Minn., 109. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FEAUDS, 97 
 
 The principal question upon the appeal was, whether the 
 contract was within the statute of frauds. 
 
 The court, Atwater, J., held that it was not. He laid 
 down the following sound rule : Where doubt exists as to 
 the construction of a contract, with reference to the statute 
 of frauds, the doubt should be given in favor of sustaining 
 the contract rather than to declare it void. 
 
 It may well be questioned, said the court, whether the 
 statute, in its present form, is productive of more good than 
 evil, and there seems no good reason for giving it a wider 
 scope than may be clearly required by the terms of the 
 contract, to which the statute is sought to be applied. 
 
 § 122. In general the work of an artist has been held to 
 be a contract of work and labor, and not of sale. 
 
 In Wright v. O'Brien 1 an artist was employed by the 
 plaintiff to copy in crayons, from a small photograph, a 
 likeness of the plaintiff's child, for which he was to be paid 
 a specified sum. Almost the sole ingredient, said the court, 
 was his labor and skill ; the materials, which consisted of 
 the canvas upon which the work was executed, and the 
 crayons with which it was done, being unimportant and 
 merely ancillary to his contract for skill, work and labor. 
 It is clear that in all such cases the contract is for work 
 and labor and not a contract for the sale and delivery of 
 goods, in which both delivery and acceptance are essential 
 to the validity of the contract under the statute of frauds. 
 
 So, also, where a mechanic was employed to do work 
 and furnish materials. 2 
 
 § 123. In Francois v. Ocks 3 a portrait, as it appears, was 
 painted under an order. After it was delivered the defend- 
 ant declared it to be " a first-rate portrait," promised to pay 
 the price and directed it to be sent to a frame-maker, where 
 it was put in a frame and returned to the defendant. 
 
 1 5 Daly (N. Y. C. C. P.), 54. See, ^Courtright v. Stewart, 19 Barb., 
 
 also, Matthison v. Wescott, 13 Vt., 455; Turner v. Mason, 9 Western 
 
 261 ; Wolfenden v. Wilson, 33 U. C. Kep., 349. 
 
 q. B.,445. 8 2E.D.Smith(N.Y.C.C.P.),417. 
 
 7 
 
98 SALES. [chap. t. 
 
 At the trial it was proved that the portrait was actually 
 painted by the father of the plaintiff. 
 
 The court gave judgment for the plaintiff. 
 
 On appeal, Woodruff, J., in affirming the judgment, said, 
 ,in effect, that if the defendant had refused to accept the 
 portrait on the ground that he contracted for the skill of 
 the plaintiff himself, the action could not have been sus- 
 tained. But the judgment was rendered here on the ground 
 that the defendant was satisfied and actually accepted the 
 work at the time of its completion. 
 
 This act took the contract out of the operation of the 
 statute of frauds. 
 
 § 124. In general a contract of an artist to paint a por- 
 trait, or to produce any work of art, is without the statute 
 of frauds. The most recent, and one of the most impor- 
 tant cases involving this point is the case of Turner v. Ma- 
 son, 1 decided in Michigan in 1887. There the plaintiff, an 
 artist, sued the defendant for professional work in finishing 
 one picture and partly finishing two others. 
 
 The plaintiff had in some way obtained a likeness painted 
 of a child of the defendant, a little boy, and after it was 
 finished the defendant bought it. 
 
 The defendant had two little girls of whom he had pho- 
 tographs, and the plaintiff agreed to paint portraits from 
 these photographs, to be finished in water colors, and to 
 furnish frames.- After these were partially finished they 
 were not satisfactory, and it was agreed to lay this work 
 aside and make one picture of the two little girls, life size, 
 in pastel, from a photograph representing the two together. 
 
 The price, according to the testimony of the defendant, 
 was to be $150; but the plaintiff, on the other hand, averred 
 that no price was agreed upon, and that the painting was 
 worth $350. A frame which cost $50 was put up before 
 the picture was done. 
 
 During the progress of the picture changes were made, to 
 rectify defects chiefly of style. 
 
 1 9 Western Rep., 849; decided April 28, 1887. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FKAUDS. 99 
 
 The painting never was delivered and never tendered 
 directly, but a bill was sent to the defendant, and a suit 
 brought, and the plaintiff recovered a judgment for over $200. 
 
 The defendant contended that the contract sued on was 
 for a chattel exceeding $50 in value, and therefore within 
 the statute of frauds. 
 
 Campbell, Ch. J., in an able opinion said: "Bat we do 
 not think it was a contract of sale." After stating that the 
 first portrait of the little boy was a chattel already in exist- 
 ence as a finished picture, and was delivered as such, he said: 
 " The other portraits were not ordered as chattels having 
 any marketable value, but as productions involving as their 
 only value the artistic work and labor of plaintiff, and their 
 successful presentation of the children to be represented. 
 It does not seem to us that there is any doubt about the fact 
 that the whole value was to arise out of the work of the 
 artist, on materials of no particular value, and for a result 
 of more value to the parents than to any one else. 
 
 " We do not think the case calls for any discussion of the 
 statute of frauds regarding sales." 
 
 The charge below directed the jury to give as damages 
 " what this picture is worth, .and what Mr. Turner's services 
 are worth for producing the picture as it has been produced, 
 and the frame." And in getting at the value they were 
 told to take into consideration the exhausting studies neces- 
 sary to acquire skill as an artist. 
 
 The court said : " We do not think the jury had any right 
 to consider, or any means of judging, the value of plaintiff's 
 work by the expense, time, or character of his studies, and 
 there was no testimony indicating that he had reached ex- 
 ceptional distinction. The jury knew nothing of him beyond 
 his local experience and standing." . . . "The pictures 
 he made or was to make for defendant were substantially 
 copies from photographs, and not independent original por- 
 traits, involving the labor or imagination of an original 
 artist.' But while an artist's success and his capacity to make 
 large earnings may be due to his thorough training, yet his 
 
100 SALES. [OHAP. V. 
 
 work and its pecuniary value cannot be determined by any 
 such standard." 
 
 No testimony was offered to show how much time or toil 
 or money it cost the plaintiff to make him an artist. The 
 judgment was reversed, all the judges concurring. 
 
 The elaborate briefs used on the one side and the other, 
 in the above appeal, and as given at length in the Western 
 Reporter, will be found of incalculable value to the practi- 
 tioner on this and kindred subjects. 
 
 § 125. In Easch v. Bissell : the defendant employed the 
 plaintiffs, merchant tailors, to make him an overcoat for 
 $60. 
 
 The coat was made in accordance with the designation of 
 the defendant, and when finished it was sent to the defend- 
 ant's house. He returned it in a daj r or two for alteration, 
 which was made, and again was sent to the defendant and 
 again returned by him, saying that it was not heavy enough, 
 and the plaintiffs made the coat still heavier, and again 
 sent it to the defendant. 
 
 The next day the defendant sent the coat back to the 
 plaintiffs with the message that he did not want it. He 
 had in fact bought a ready-made coat. The action was in 
 assumpsit. 
 
 The plaintiffs recovered judgment. At the trial the 
 court charged the jury as follows: " The defendant has not 
 seen fit to come in here and offer evidence, or try the 
 overcoat on in your presence, or bring experts to show 
 that it was not a good fit." This was excepted to. The 
 charge was held to be correct. 
 
 Sherwood, J., said: "The remaining assignment assumes 
 the claim made by the plaintiffs is within the statute of 
 frauds. This' is a mistake. That question is not involved 
 in the case." 
 
 The judgment was affirmed. 
 
 152 Mich., 455; 18 Northwest. Rep., 216; Lane v. Melville, 3 U. C. Q. 
 B. (O. S.), 127. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FEAUDS. 101 
 
 § 126. In the recent case of The Georgia Kenning Com- 
 pany v. The Augusta Oil Company, 1 it appeared that numer- 
 ous "letters had passed between the parties, which recited the 
 fact that the defendant was to take oil in fifty-barrel lots at 
 forty-five cents per gallon, and also they discussed at length 
 the situation and the differences between them. 
 
 The correspondence, as shown, comprised a sufficient note 
 or memorandum under the statute of frauds. Besides, the 
 contract was partly performed. The Augusta Oil Company, 
 the plaintiffs below, recovered judgment. 
 
 The court, Jackson, C. J., in passing upon the exceptions 
 raised by the defendant, held that " where the buyer agrees 
 to purchase personal property from the seller, and pay a 
 certain price for it, and then refuses to take it and pay for 
 it. then the seller may keep it as his own and recover the 
 difference between the market price at the time and place of 
 delivery and the contract price, as the measure of damages 
 for the buyer's breach of the contract." Such is the law. 2 He 
 further says, " the contract is recognized in writing in many 
 letters of the defendants, and was partly performed, either 
 of which facts takes it without the statute." 3 The judgment 
 was a dinned. 
 
 § 127. Orman v. Hagar 4 was an action of assumpsit, 
 brought to recover of the defendant $1,050. The plaintiff 
 agreed to cut, saw and deliver to the defendant, upon the 
 line of the Texas, Santa Fe & Northern Railroad, in Santa 
 Fe and Eio Arriba counties, one million feet of sawed rail- 
 road lumber of certain sizes, the contract to be completed 
 December 1, 1882; that the defendant agreed to accept 
 and receive from the plaintiff all of said lumber as fast as 
 the same could be delivered to him, and to pay $19.50 per 
 thousand feet. The plaintiff entered upon the performance 
 
 1 74 Ga., 497. 50 Ga., 644; Andrews v. Hoover, 8 
 
 2 Benjamin on Sales, § 1165; Watts, 239. 
 
 McCombs v. McKennan, 2 Watts 3 Foster v. Leeper, 29 Ga., 294; 
 & Sergt., 219; 63 Mo., 567; Groo- Code, g 1951, subsec. § 2. 
 ver, Stubbs & Co. v. Warfield, <9 Pacific Rep., 363. 
 
102 SALES. [CHAP. V. 
 
 of the contract at once, by procuring saw-mills and neces- 
 sary labor for carrying out the same, and furnished to the 
 
 defendant thousand feet of lumber, as required by said 
 
 contract, but defendant afterwards refused to perform his 
 part of the contract. 
 
 A question was raised in the case whether, under the act 
 of 1876, the statute of frauds (29 Oar. II., § IT) was adopted 
 as part of the common law of ]S[ew Mexico. 
 
 The testimony, in the case showed that the lumber to be 
 sawed and delivered by the plaintiff to the defendant was 
 of a specified kind ; that it was the kind used in constructing 
 narrow gauge railroads, and was not the kind usually kept 
 and sold by lumber merchants ; that the timber from which 
 the lumber was to be made stood on government land, and 
 that defendant was to obtain permission for plaintiff to go 
 upon this land and procure timber to be sawed. 
 
 The court, Brinker, J., after reviewing the facts and cit- 
 ing many cases touching the questions involved, says : " It 
 cannot be seriously urged that this was a contract for the 
 sale of goods, but is unquestionably a contract for work 
 and labor, and not within the statute, even if it be held 
 that the statute of frauds is in force here." The judgment 
 was affirmed in favor of the plaintiff. 
 
 § 128. Y~ liere the plaintiff was interested to the extent of 
 one-fourth in the profits or losses of a shipment of goods 
 undertaken by him jointly with other parties, and after the 
 adventure had been begun, and before the goods reached 
 their destination, the plaintiff agreed that the defendant 
 should have one-fourth interest in the adventure, and a loss 
 occurred, the plaintiff brought this action to recover one- 
 half of his proportion of the loss. 
 
 The defendant contended that no valid contract was 
 made. 
 
 The agreement seems to have been that the defendant 
 was to share " in the result, whether it should prove a profit 
 or a loss." 
 
 Eapallo, J., said: "It was not an agreement for the sale 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FRAUDS. 103 
 
 of any personal property or chose in action, but an exec- 
 utory agreement, whereby one party undertook to bear 
 one part of a possible loss, in consideration of a share of an 
 expected profit. The agreement was not within the statute 
 of frauds." l 
 
 Judgment for the plaintiff was affirmed. 
 
 § 129. It seems to be generally held that if one entire con- 
 tract be void in part it is wholly void. 
 
 So held by Savage, C. J., in Thayer v. Kock; 2 so, also, in 
 Crawford v. Morrell, 3 the court said : " This was part of the 
 same contract, and this last part was void by the statute of 
 frauds ; and if part of one entire contract be illegal and 
 void, the whole is void." 
 
 But as an entire contract cannot be divided or appor- 
 tioned, it has been held in some cases that if a part of an 
 order is within the statute and a part is without, the entire 
 transaction is deemed to be within it. 4 
 
 And where a written contract is made for the sale of per- 
 sonalty, including real estate also, it has been held that the 
 contract for the personalty is not necessarily vitiated. 5 
 
 So, if a person performs services under an agreement 
 which is void by the statute of frauds, he may recover for 
 the services. 6 
 
 Trusts in personal property are not within the statute of 
 frauds, and may be established by parol. 7 
 
 § 130. As it appeared in Henline v. Hall, 8 Henline sold 
 a colt to Hall for $20. It was at the time agreed that the 
 colt should run with the mare, which was owned by Hen- 
 
 i Coleman v. Eyre. 45 N. Y., 38. sstansell v. Leavitt, 51 Mich., 
 
 213 Wend., 53; Eice v. Peet, 15 536. See, also, Smith v. Smith, 14 
 
 John., 503. Vt, 440; Abb. Annual Dig., 1884, 
 
 3 8 John., 256. See, also, Hobbs v. pp. 73, 73 ; Mayfield v. Wadsley, 3 
 
 Wetherwax, 38 How., 385; Burski B. & C, 357. 
 
 v. Paige, 36 N. Y., 537. 6 Shute v. Dorr, 5 Wend., 204. 
 
 * Cooke v. Tombs, 2 Anst., 420; "Kramer v. McCaughey, 11 Mo. 
 
 Chater v. Beckett, 7 T. R., 201; App. R., 429. 
 
 Thomas v. Williams, 10 B. & C, 8 4Ind., 189. 
 664 ; Loomis v. Newall, 15 Pick., 159. 
 
104 SALES. [CHAP. V. 
 
 line, until it was weaned, at which time it should be deliv- 
 ered to Hall, who was at that time to pay the price stipu- 
 lated. When the colt was weaned and before suit brought, 
 Hall tendered the price agreed on, but Henline refused to 
 deliver the colt. 
 
 The contract was by parol. 
 
 The court, Eoache, J., said that by the common law a 
 parol contract for the sale of chattels was valid ; that the 
 statute changed the rale only as to contracts exceeding $50 
 in value. " The price of the colt being less than that sum, 
 the contract is not affected by the statute of frauds, and is 
 as valid as if it had been reduced to writing." 
 
 From the conclusion of the contract until the actual de- 
 livery of the colt, the seller, Henline, was a bailee. 1 
 
 § 131. In King v. Brown, 2 where the contract by parol 
 was to convey four acres of land, in consideration of cer- 
 tain work to be done, the contract was declared to be void 
 under the statute of frauds. 
 
 Nelson, C. J., on appeal, announced the true principle to 
 be, that the contract being void and incapable of enforce- 
 ment in a court of law, the party paying the money or ren- 
 dering the services in pursuance thereof may treat it as a 
 nullity and recover the money or value of the services ren- 
 dered under the common counts. " This is the universal rule 
 in cases where the contract is void for any cause not illegal, 
 if the defendant be in default, . . . and assuming that 
 the only remedy at law is the value of the services thus 
 rendered under the general counts, it cannot exceed that 
 amount, together with the interest." 3 
 
 § 132. In Case v. St. Catharines Opera House Company. 4 
 it appeared that the plaintiff purchased at the defendant's 
 office six tickets for reserved seats for the performance of 
 
 1 Willis v. Willis, 6 Dana, 48; wood, 10 Wend., 142; Sugd. on 
 Crawford v. Smith, 7 id., 59. Vend., 219, 222. 
 
 2 2 Hill, 485. <6 Can. Law T., 309. See, also, 
 
 3 See on this point, Gillet v. May- Wood v. Leadbitter, 13 M. & W., 
 nard, 5 Johns., 85; Gary v. Hull, 838; Wood v. Lake, Sayer, 3. 
 
 11 Johns., 441 ; Dimrnock v. Lock- 
 
CHAP. V.J CONTEAOTS "WITHOUT STATUTE OF FEAUDS. 
 
 105 
 
 The Mikado, and paid $6 for them ; each ticket had a cou- 
 pon attached, showing the row and number of the seat, as 
 follows: 
 
 OPERA HOUSE, ST. CATHARINES. 
 
 i 
 
 m 
 
 3 
 
 ADMIT ONE. 
 
 H. G. Hunt, 
 
 Manager, 
 
 Row 
 
 No 
 
 Parquette. 
 Retain 
 
 this 
 Check. 
 
 Parquette. 
 Reserved Seat. 
 
 The tickets were numbered respectively from twelve to 
 seventeen. The plaintiff with five others went to the 
 opera house at the proper hour, but found that two of the 
 said six seats were occupied; and the manager declining to 
 compel the occupants to give up the seats, the plaintiff 
 with his party left the theater. 
 
 This action was for damages for breach of contract. The 
 defendants pleaded the statute of frauds. Senkler, C. J., 
 held that the contract between the parties was simply this: 
 The defendants agreed to allow the plaintiff and his party 
 to enter the theater on the night in question during the per- 
 formance of the play, and to reserve for his accommoda- 
 tion certain seats; that the agreement did not amount to 
 a demise or affect any interest in land, out was merely per- 
 sonal' and did not require to be authenticated by any writ- 
 ing. 
 
 Accordingly judgment was given for the plaintiff for 
 damages and costs. 
 
 § 133. The equitable doctrine has uniformly been ad- 
 hered to, that, as the statute of frauds was designed as a 
 protection against fraud, " it shall never be allowed to be 
 set up as a protection and support of fraud." l 
 
 But where there has been an act of part performance, 
 that will,. in equity, avoid the operation of the statute; for, 
 otherwise, it would become an instrument of fraud for de- 
 signing parties. 2 
 
 1 1 Story's Equity Jurisprudence, 2 2 Story's Eq. Juris., § 759 ; Gilb. 
 § 330. Lex Pratoria, pp. 239, 240. 
 
106 SALES. [CHAP. V. 
 
 The same principle is clearly enunciated in a recent 
 New York case. 1 
 
 A contract between brokers, whereby one agrees to pur- 
 chase and sell stock for the account of the other, to advance 
 money for the purpose and pay assessments on the stock 
 purchased, is not obnoxious to section 26, article 4, of the 
 constitution ; and is not required by the statute of frauds to 
 be in writing. 2 
 
 § 133a. On the subject of part performance it may be 
 said that, to take a case out of the statute of frauds, on 
 the ground of part performance, two things at least are 
 requisite: first, the terms of the contract must be established 
 by proofs which are clear, definite and unequivocal; and 
 second, the acts relied upon as part performance must be 
 exclusively referable to the contract. 
 
 On this general question, see note. 3 
 
 An agreement not to engage in a rival business is not 
 Avithin the statute of frauds. 4 
 
 § 134. A third person is not liable for false representa- 
 tions affecting a contract void by the statute of frauds. Thus 
 take the case of Eice v. Manley. 5 That was an action to 
 recover damages by reason of the failure of one Stebbins 
 to deliver twenty-four thousand pounds of cheese at eleven 
 cents per pound, under a verbal agreement to that effect 
 made with the plaintiff, such failure having been caused by 
 the false representations of the defendant made to said 
 Stebbins. The plaintiff's business was that of buying and 
 shipping cheese from different points in Allegany and Cat- 
 taraugus counties, to New York city. 
 
 i Shermans. Scott, 2 Civ. Pro. E., 4 "Welz v. Rhodius, 87 Ind., 1. 
 
 369"; Ryan v. Dox, 34 N. Y., 307, Where so much of a contract as 
 
 and cases there cited. would otherwise be within the 
 
 2 Kertz v. Fleisher, 67 Cal., 93. statute is executed, the remaining 
 
 3 Cooper v. Carlisle, 2 C. E. Gr., stipulations may be enforced. 
 
 525; Stotsbury v. Vail, 2 Beas., Stephenson v. Arnold, 89 Ind., 
 
 246 ; Ackerman v. Ackerman, 9 C. 426. 
 
 E, Gr., 589; Smith v. McVeigh, 3 5 5 N. Y. S. C. (T. & C), 15; 
 
 Stock., 239; Farr v. Dutcher, 3 C. Dung v. Parker, 52 N. Y 494 
 
 E. Gr., 401. 
 
CHAP. V.J CONTRACTS WITHOUT STATUTE OF FKAUDS. 107 
 
 No part of the purchase price was paid, and no cheese 
 delivered; but it was the intention of both parties to carry 
 out the agreement, and it would have been fulfilled but for 
 the interference of defendant. 
 
 Manley, the defendant, was present when the contract 
 was made. For the purpose of becoming himself the pur- 
 chaser, the defendant caused to be sent to Stebbins the fol- 
 lowing telegram: '"If you can sell the cheese do so. I 
 don't care for it." The telegram had the name " E. Ejce " 
 signed to it. 
 
 Stebbins believing this dispatch to be genuine, and that 
 the plaintiffs did not want the cheese, accepted defendant's 
 offer to purchase it at the same price. 
 
 Mullen, P. J., says: 
 
 " As we understand the decisions in such cases, they quite 
 uniformly hold, that, whenever the plaintiff is bound to prove 
 a contract to entitle him to recover, and that contract is 
 void by the statute of frauds, neither the parties to it, nor 
 any third person, can maintain the action. . . . Unless 
 there was a contract between Rice and Stebbins for the sale 
 and purchase of the cheese, Rice could not be damnified by 
 the fraudulent representations of the defendant." 
 
 § 135. The above decision, although seemingly sound, is 
 at variance with the decision in Benton v. Pratt. 1 In that 
 case, Seagraves and Wilson verbally agreed to purchase of 
 plaintiff two hundred hogs, and pay him the market price, 
 " provided he delivered them within three or four weeks, 
 and they had not been previously supplied." One Pratt, 
 learning of this agreement, about the time the plaintiffs 
 were in readiness to deliver their hogs to Seagraves and 
 "Wilson, offered his two hundred hogs to them, which they 
 at first declined to purchase, on the ground that they had 
 contracted with the plaintiff; but upon being told by a 
 person who attended to Pratt's drove, in the presence of 
 Pratt, that the plaintiff was going to Easton with his hogs 
 to fulfill a contract, and after making further inquiries, and 
 1 2 Wend., 385 (A. D. 1827). 
 
108 SALES. [CHAP. V. 
 
 not learning of the plaintiff's approach to Allentown, Sea- 
 graves and Wilson bought Pratt's drove of hogs. On the 
 following day the plaintiff arrived with his drove, and Sea- 
 graves and "Wilson declined to buy, having been thus supplied 
 by Pratt. Plaintiff lost the sale of the hogs by reason of 
 Pratt's misrepresentation, and brought this action against 
 Pratt to recover his damages thereby occasioned. 
 
 Sutherland, J., after reviewing some of the English and 
 American authorities on this subject, says: "In the case at 
 bar there are no such difficulties " (referring to the case of 
 G-allagar v. Brunei, 1 where the action was held not to lie, 
 because the false representation which was alleged to have 
 been made did not amount to an assertion of a fact or facts 
 as existing at the time) ; " there is the assertion, on the part 
 of the defendant, of an unqualified falsehood, with a fraudu- 
 lent intent as to a present or existing fact, and a direct, 
 positive and material injury resulting therefrom to the 
 plaintiff. This is sufficient to sustain the action." 
 
 We fail to see why this was not a void contract under the 
 statute of frauds, and why the plaintiff should have re- 
 covered. There was no memorandum in writing between 
 plaintiff and Seagraves and Wilson, no earnest paid, and no 
 part delivery. It was at most a sale conditioned upon the 
 fact whether at the time mentioned, " within three or four 
 weeks," Seagraves and Wilson should not be " previously 
 supplied." The plaintiff could not have sustained an action 
 against Seagraves and Wilson, and that being so, no action 
 would lie against Pratt. 
 
 1 6 Cowen, 346. 
 
CHAPTEE YI. 
 
 CONCERNING GOODS, WARES AND MERCHANDISE — SHARES 
 OF STOCK AS GOODS. 
 
 § 136. Definition of goods, wares and merchandise, in a legal and lexi- 
 cographical sense. 
 
 137. Application of the meaning of goods and chattels. 
 
 138. The more modern construction of the words of the statute of 
 
 frauds. 
 
 139. As to shares of stock falling within the statute ; variance in the 
 
 decisions. 
 
 140. The first case on the subject in England ; Pickering v. Appleby ; 
 
 a divided court. 
 
 141. An early case in chancery. 
 
 142. Shares of stock held not within the statute in England ; other- 
 
 wise in this country. 
 
 143. A sale of an interest in an invention not within the statute of 
 
 frauds. 
 
 144. In Tisdale v. Harris shares of stock held to be within the statute. 
 
 145. Decisions of several states holding in the same way. 
 
 146. The same subject continued. 
 
 147. Shares of stock, checks, promissory notes, and bonds in certain 
 
 states held not to be within the statute of frauds. 
 
 148. In Indiana it is held, same as in England, that shares of stock 
 
 are not embraced within the statute ; the case of Vawter v. 
 Griffin. 
 
 149. In Massachusetts shares of stock are decided to be within the 
 
 statute ; Pray v. Mitchell. 
 
 150. A conditional purchase of stock or subscription for stock held 
 
 within the statute in Boardman v. Cutter. 
 
 151. A parol promise to discharge one from a contract of sale of stock 
 
 which is within the statute is invalid ; North v. Forrest. 
 
 152. Sale of promissory notes held to be within the statute of frauds 
 
 of Massachusetts. 
 
 § 136. The definition of the words goods, wares and 
 merchandise, as rendered by the lexicographers, has perhaps 
 had some influence upon the courts, as they have often 
 given expression to their meaning. 
 
110 SALES. [CHAP. VI. 
 
 In his New World of Words, published nearly a genera- 
 tion before the English statute of frauds was passed, Mr. 
 Phillips defines the meaning of "merchandise" to be com- 
 modities or goods to trade with; and, in effect, the same 
 definition is given in the dictionaries of Kersey, Martin and 
 Bailey. 
 
 The Glossographia Anglicana Nova says the word " mer- 
 chandise " came into use as a term to distinguish the goods 
 and wares exposed to sale in fairs and markets. A similar 
 opinion is expressed in Cowell's Law Interpreter, 1708. 
 
 "Wares," says Cotgrove's dictionary (1632), is merchan- 
 dise or merchandise commodity; while Johnson defines 
 wares as " commonly something to be sold ;" and "Webster 
 and Worcester, "goods, commodities, merchandise." 
 
 " Goods," in Bailey's dictionary (1732), is said to be mer- 
 chandise; and in Johnson's, "personal or movable estate, 
 wares ;" Worcester, the same, including " chattels, merchan- 
 dise." 
 
 The word " goods," as a technical term of the law, is 
 nomen generalissimum, and has an extensive meaning. 
 
 Hence, the words " goods, wares and merchandise," lexi- 
 cographically and in a legal sense, may be said to mean 
 commodities produced or manufactured, and bought and 
 sold in trade and commerce. Text-writers agree that these 
 words comprehend all tangible and corporeal movable prop- 
 erty, whether such property be fixed or growing out of the 
 soil or not. 1 
 
 § 137. The words " goods, wares and merchandise " are 
 of large signification. In the more recent decisions they 
 have received a liberal interpretation. 2 
 
 Under the civil law, bona is quite as extensive as personal 
 
 1 Blackburn on Sales, 9, 10 ; Ben- Mass., 388; Riggs v. Magruder, 2 
 jamin on Sales, § 111 ; Code Napo- Cranch, C. C, 143; Gooch v. 
 leon, arts. 516-536 ; Law Quarterly Holmes, 41 Me., 523. Even"ac- 
 Rev., January, 1885, p. 11. counts " have been adjudged to be 
 
 2 Fine v. Hornsby, 2 Mo. App. goods. Walker v. Supple, 54 Ga., 
 R., 61; Boardman v. Cutter, 128 178. 
 
 I 
 
CHAP. VI.] GOODS, WARES AND MERCHANDISE. Ill 
 
 property itself; and at common law, the word merchandise 
 has a comprehensive meaning — Merx est quicquid vendi 
 potest. Personal things for which merchants traffic may 
 be called merchandise. The words goods and chattels, it 
 may be said, cover more than any possible or practicable 
 enumeration. How extensive the meaning of these words 
 is to be understood in any instance, say the cases, must de- 
 pend upon the subject-matter and the context. 1 
 
 In several of the English statutes the word "goods" 
 {bona and Mens) was intended to denote personalty in gen- 
 eral, and it is used as synonymous with chattels, debts and 
 credits. 2 
 
 Some cases have held that "goods and chattels" — the 
 generic denomination of things personal, as used in the 
 statute of frauds of some states — embrace personal prop- 
 erty in possession, as well as animate and inanimate prop- 
 erty. 3 
 
 In general, the authorities hold that the word "goods" 
 applies to inanimate, and " chattels " to animate things. 
 
 § 138. The tendency of the more modern authorities and 
 cases has been, *not to give to the statute of frauds a narrow 
 or rigid construction, but such a construction as will best 
 accord with the intention of the law-makers, the legislature. 
 This is the golden rule of interpretation. 
 
 § 139. The question whether shares of stock in incor- 
 porated companies properly fall within the operation of the 
 statute of frauds has been frequently passed upon by the 
 courts. 
 
 In the states of this country, the decisions on the subject 
 are quite variant. This has resulted in part from the fact 
 
 iGibbs v. Usher, 1 Holmes, C. 3 Weston u. McDowell, 20 Mich., 
 
 C. E., 561 ; § 3343, subd. 7, of the 357, Graves, J. ; sec, 3184, Comp. 
 
 Code of Civ. Pro. of New York. L. of Michigan ; Citizens' Bank v. 
 
 2 Portman v. "Willis, Cro. Eliz., Nantucket Steamboat Company, 2 
 
 386; Stat. 13 Edw. 1, ch. 19; 31 Story R., 52; Baldwin v. Williams, 
 
 Edw. 3; Stat. 22 and 23 Car. 2, 3 Met., 367; 2 Chitt. Bl. Com., 
 
 ch. 10; 29 Car. 2, ch. 3, § 25; Co, 384, n. 
 Litt., 118&. 
 
112 SALES. [CHAP. VI. 
 
 that the language of the statute of frauds of the several 
 states, in many instances, is different. 
 
 But in England the law is well established by the lead- 
 ing cases, that shares, stocks, documents of title, choses in 
 action, and other incorporeal rights and property, do not 
 fall within the operation of the statute, of frauds. They 
 are deemed choses in action; not "goods, wares and mer- 
 chandises." 1 
 
 § 140. Probably the first case in England where the 
 question arose as to whether shares of stock of a corpora- 
 tion properly came within the meaning of the statute of 
 frauds as to the sale of " goods," etc., is that of Pickering 
 v. Appleby. 2 
 
 It was an action of assumpsit for the value of ten shares in 
 the stock of the Governor and Company of the copper mines 
 in England, sold by the plaintiff to the defendant. There 
 was no memorandum in writing signed, nor any earnest 
 paid. At the trial, King, Ch. J., entertained grave doubts 
 as to the contract falling within the operation of the statute 
 of frauds. It was, therefore, made a case, and was argued 
 before the court of common pleas, and afterwards at Ser- 
 geant's Inn, before all the judges of England. They were 
 equally divided on the question, six against six. 3 
 
 § 141. Mr. Eoberts, in his valuable treatise on the Stat- 
 ute of Frauds, observes that the case of Massell v. Cooke 4 
 came on at Trinity term, in 1720. 
 
 1 Humble v, Mitchell, 11 A. & E., 307 ; Cuddee v. Rutter, 1 id., 570. 
 205; Bowlby v. Bell, 3 C. B., 284; The case of Colt v. Netterville 
 "Watson v. Spratley, 10 Exch., 222; arose out of the sale of some York 
 Knight v. Barber, 16 M. & W., 66 ; Buildings stock. A demurrer was 
 Bradley v. Holdsworth, 3 id. , 422 ; interposed. Whether such stock 
 Heseltine v. Siggers, 1 Exch., 856; was embraced within the statute 
 Hibblewhite v. McMorine, 6 M. & of frauds, the lord chancellor said 
 W., 200; Powell v. Jessop, 18 C. that the question was too difficult 
 B., 336. See Statute 32 and 33 for him to determine upon a de- 
 Vict., ch. 71, § 15, subd. 5; and In murrer. 
 
 re Fox, L. E., 17 Eq., 113. « Precedents in Ch., 533; Roberts 
 
 2 Com. Rep., 354. on»Stat. of Fr., 185; Wood on 
 
 3 Colt v. Netterville, 2 P. Wms., Frauds, 394, n. 
 
OHAP. VI.] GOODS, WARES AND MERCHANDISE. 113 
 
 This is probably the same case mentioned in Crull v. 
 Dodson. 1 In that case the court said it had been deter- 
 mined in chancery that contracts in relation to sales of 
 stock were within the statute of frauds, and without earnest 
 being given were nuda pacta. 
 
 It ma}' also be presumed that it is the same case referred 
 to by Gray, C. J., in Somerby v. Buntin, 2 in a similar manner. 
 
 § 1-12. In his work on contracts, published in 1807, Mr. 
 Cornyn takes occasion to say that the point does not ap- 
 pear to be finally settled in England, whether shares of a 
 company, or public stock, are comprehended within the 
 words goods, wares and merchandise. But since Mr. 
 Comyn wrote his treatise, it has been well established, by 
 numerous cases in England, that the statute of frauds does 
 not apply to contracts for the sale of stocks, and such is 
 now the law. 
 
 On the other hand, by abundant authority in the states 
 of this country, it is well settled that such contracts are 
 within the statute of frauds, and are void without the req- 
 uisites of the statute being complied with. 
 
 As so large an amount of property, in the several states 
 of the country, is invested in corporations, and as the ordi- 
 nary indicia of property arising from delivery and posses- 
 sion cannot take place, there seem to be peculiar and good 
 reasons why shares and stocks of corporations should be 
 embraced under the words " goods, chattels," etc., and why 
 the statute of frauds should apply to them. 
 
 § 143. It was observed by Gray, 0. J., in Somerby v. 
 Buntin, 3 that the words " goods, wares and merchandise " 
 had never been extended by any court beyond securities 
 which are subjects of common sale and barter, and which 
 have a visible and palpable form. 
 
 1 Select Cas. in Chan., 41 & Reg. inson, 5 M. & G., 253; Doyle v. 
 
 A. (1724), fol. 491, in Ld. Ray- Dixon, 97 Mass., 208; Browne on 
 
 mond's time. the Stat, of Fr., 272; R. S. of the 
 
 2 118 Mass., 279. United States, § 4898. 
 
 s 118 Mass., 279; Chanter v. Diok- 
 8 
 
114 SALES. [CHAP. VI. 
 
 He there held that an oral contract to sell an interest in 
 an invention before letters patent are obtained is not within 
 the statute of frauds. 
 
 " Before letters patent are obtained," said the court, " the 
 invention exists only in right, and neither that right, nor 
 any evidence of it, has any outward form which is capable 
 of being transferred or delivered in specie, or which, upon 
 any construction, however liberal, can be considered as 
 goods, wares or merchandise." 
 
 And, accordingly, the court held that the contract set up 
 in the bill was not for the sale of "goods," etc., within the 
 statute of frauds. 
 
 § 144. "While the current trend of the decisions in this 
 country is, that contracts for the sale of stocks, shares in 
 corporations, etc., are embraced within the words " goods, 
 wares and merchandise," a difference in the language of 
 the statute of frauds of the several states, as indicated, has 
 occasioned considerable variation in the decisions. 
 
 Over half a century ago it was substantially said by 
 Shaw, C. J., in Tisdale v. Harris, 1 that by reason of the 
 great increase of incorporations, and the amount of capital 
 invested in them, and as there is as much danger of fraud 
 and perjury in the parol proof of such contracts as in any 
 other, justice and common sense declare that they, too, fall 
 clearly within the mischiefs which the legislature, in enact- 
 ing the statute of frauds, intended to remedy; that in 
 reason and sound policy they ought to be included. 
 
 § 145. So, in Missouri, in Fine v. Hornsby, 2 which ' case 
 arose out of the sale of an interest in the Missouri Lime 
 Company, Lewis, J., said that such shares are goods, wares 
 and merchandise, within the purview of the statute of 
 frauds, has been held too long, without an authoritative ad- 
 verse ruling, to admit of question now. 
 
 Likewise, in Connecticut, where, at the time the case of 
 
 1 20 Pick., 9. See, also, Colvin v. Ames, J. ; Gen. Stat, of Mass., oh. 
 Williams, 3 Harr. & J., 38; Board- 105, § 5. 
 man v. Cutter, 128 Mass., 388, 2 2 Mo. App. R., 61. 
 
CHAP. VI.J GOODS, WARES AND MERCHANDISE. 115 
 
 North v. Forrest l was decided, the statute of frauds con- 
 tained the words "goods, wares and merchandise," the 
 court, "Waite, J., said : This doctrine is supported by; the 
 greater weight of authority, and is, that such contracts fall 
 clearly within the mischiefs which the legislature, by the 
 statute, intended to remedy. That there is as much dan- 
 ger of fraud and perjury in the parol proof of such con- 
 tracts, as in any other ; and that the statute ought not to 
 be narrowed by any very rigid construction. By the let- 
 ter as well as the spirit of the statute of frauds, such con- 
 tracts fall within it. 
 
 § 146. In California, 2 where the words of the statute of 
 frauds are goods, chattels or things in action; in Maine,* 
 where the language is goods, wares or merchandise ; in Yer- 
 inont, 4 where the words are the same ; in Maryland, 5 where 
 the English statute of frauds exists intact, contracts for the 
 sale of stocks and shares in corporations are held to be 
 within the statute of frauds. 
 
 In Florida, also, where the words of the statute of frauds 
 are " personal property," shares of stock are held to fall 
 within the operation of the statute. 6 
 
 § 147. On the other hand; in Indiana, 7 where the words 
 of the statute of frauds are " sale of any goods," it is held 
 that neither shares of stock, notes, checks, bonds nor evi- 
 dences of value are embraced within the statute. In JSTew 
 Hampshire, where the words "goods, wares or merchan- 
 dise " are used in the statute of frauds, promissory notes are 
 held not to fall within its operation. 8 
 
 115 Conn., 400 (1843). The statute 6 Southern Life Insurance and 
 
 of Connecticut as amended in 1875 Trust Company v. Cole, 4 Fla., 359, 
 
 reads " personal property." 378; Gadsden v. Lauer, 1 McMul- 
 
 2 Mayer v. Child, 47 Cal., 142 lin, 87. 
 
 (1873), an action arising out of the 7 Vawter v. Griffin, 40 Ind., 602 
 
 sale of mining stock. (1872). 
 
 s Pray v. Mitchell, 60 Me., 430. swhittemore v. Gibbs, 24 N. H., 
 
 *Fa,jv. "Wheeler, 44 Vt., 292. 484. See Burke v. Partridge, 58 
 
 sColvin v. Williams, 3 Harr. & id., 353, as to sale of a patent 
 
 J., 38. right. 
 
116 SALES. [CHAP. VI. 
 
 In an early case, in Georgia, treasury checks were held 
 "without the statute of frauds. 1 
 
 And in Alabama a contract for the sale of promissory 
 notes, exceeding $200 in amount, is required to be in writ- 
 ing to be binding. 2 
 
 In Brownson v. Chapman, 3 where contracts of purchase 
 of shares of stock were made by the defendants to fill cer- 
 tain orders, and being by parol they were declared to be 
 void under the statute of frauds of New York, where the 
 words of the statute are "goods, chattels or things in 
 action." 
 
 § 148. In Vawter v. Griffin, 4 Buskirk, J"., held that the 
 word "goods," used in the statute of frauds of Indiana, em- 
 braces the words wares and merchandise; that the legal 
 effect of the English and Indiana statute is the same ; and 
 that the court might very properly adopt and be governed 
 by the construction which has been placed upon the seven- 
 teenth section by the English courts, and hold that con- 
 tracts for the sale of shares or stocks, notes, checks, bonds 
 and evidences of value are not within that section. He cites 
 some of the earlier and later English cases. 5 The learned 
 judge thought that if it had been intended by the law- 
 makers to embrace choses in action, and evidences of debt 
 also, the words personal property would have been employed. 
 It will be seen, however, that in Massachusetts, and some 
 other states, where the words " goods, wares and merchan- 
 dise " are used in the statute of frauds, it has been uniformly 
 
 1 Beers v. Crowell, 1 Dudley, 38. agrees to take back the stock sold, 
 
 2 Hudson v. Wier, 29 Ala., 294; the statute does not affect. Fitz- 
 but see Baldwin v. Williams, 3 patrick v. Woodruff, 96 N. Y., 561 
 Met., 365; Gooch i\ Holmes, 4 Me., (1884); Thorndike v. Locke, 98 
 523 ; Riggs v. Magruder, 2 Cranch, Mass., 340 (1867). 
 
 C. C, 143. 4 40Ind., 600. 
 
 3 63 N. Y., 625. See Baltzen v. sbuncroft v. Albrecht, 12 Sim., 
 Nicolay, 53 N. Y., 467; Coleman v. 189; Chanter v. Dickinson, 5 Man. 
 Eyre, 45 N. Y. , 39 ; Mason v. Decker, & Gr. , 253 ; Pawle v. Gunn, 4 Bing. 
 78 N. Y, 595; Porter v. Wormser, N. C, 445. 
 
 94 N. Y., 431. Where a vendor 
 
CHAP. VI.J GOODS, WAKES AND MERCHANDISE. 117 
 
 held, and the law is well established, that shares of stock 
 fall directly within the statute. 
 
 § 149. Thus, "Walton, J., in Pray v. Mitchell. 1 referring 
 to the case of Tisdale v. Harris, 2 with approval, said: "Now, 
 if we assume that this was not a contract or agreement to 
 become a member of the firm, but a contract with the de- 
 fendant alone, to purchase a share of his individual interest 
 in the capital stock of the company, must it not, in the 
 absence of delivery which was impossible, and in the absence 
 of earnest or part payment, which is not claimed, be proved 
 by some note or memorandum in writing, signed by the 
 party to be charged or by his agent ? Clearly so." 
 
 While it seems in consonance with common sense, and 
 has been established by the weight of authority in several 
 states, that stocks in corporations should be and are deemed 
 goods, wares and merchandise, it is equally well settled that 
 the statute of frauds does not extend to securities which are 
 not subjects of common sale and barter. 
 
 § 150. In Boardman v. Cutter, 3 the defendant, as an in- 
 ducement to the plaintiff to subscribe $1,000 to the capital 
 stock of a corporation which was about to be formed, as- 
 sured him that he would purchase the shares at cost, less the 
 interest, at any time the plaintiff should desire to sell them. 
 
 The plaintiff subscribed and paid for the shares, and 
 within six months afterwards offered to transfer the stock 
 to the defendant, and demanded of him the fulfillment of 
 his agreement, which he refused. The court below ruled 
 that the agreement was valid in law; that the signing of 
 the agreement to form the corporation by the plaintiff, and 
 the taking the shares of stock by him, was by reason of the 
 agreement between the parties, and that the plaintiff was 
 entitled to recover the par value of the ten shares, what- 
 ever their market value might be, with interest from the time 
 of the demand. 
 
 To these instructions and rulings the defendant excepted. 
 
 160 Me., 430. and Stockholders, § 333. See, also, 
 
 2 20 Pick., 13. Mayer v. Child, 47 Cal., 143. 
 
 3 128 Mass., 388; Cook on Stock 
 
118 13ALES. [CHAP. VI. 
 
 Upon the appeal, Ames, J., said : " It has been decided by 
 this court that shares in a corporation are ' goods, wares or 
 merchandise ' within the statute of frauds. 1 
 
 " There is some conflict in the decisions of other courts 
 upon this point, 2 but we do not feel called upon to overrule 
 the two decisions above cited. As the defendant's contract 
 in this case was not in writing, we see no ground upon 
 which any action can be maintained upon it, without violate 
 ing the statute of frauds." 
 
 And he further substantially said, that the fact that the 
 plaintiff was induced to become one of the stockholders by 
 the defendant's promise that he would at some future time ' 
 buy the stock of him at a specific price did not change the 
 essential character of the transaction. 
 
 § 151. The principal question presented in North v. For- 
 rest, 3 which was an action in assumpsit, was whether a dis- 
 charge from a contract, for the sale of shares of stock in a 
 joint stock corporation, which is within the statute of 
 frauds, is a sufficient consideration for a parol promise, 
 by the releasee, to pay a sum of money. The court held it 
 was not. 
 
 The defendant agreed to sell, and the plaintiff agreed to 
 purchase of him, certain shares in a corporation for $3,000, 
 to be paid by the plaintiff, on the transfer of the shares to 
 him, which transfer was to be made within a reasonable time. 
 
 Two weeks afterwards, in consideration of the plaintiff 
 agreeing to discharge the defendant from the performance 
 of this agreement, the defendant promised to pay him $150, 
 when requested ; and also to pay him one-half of the ex- 
 cess of such sum as he should sell his, the defendant's, in- 
 terest in said stock for, over and above the sum of $3,000, 
 when the defendant should be requested by the plaintiff. 
 A month later the defendant sold his interest for $3,200; 
 
 1 Tisdale v. Harris, 20 Pick., 9; 230; Knight v. Barber, 16 M. & 
 Baldwin v. Williams, 3 Met., 365. W., 66. 
 
 ^Somerby v. Buntin, 118 Mass., "15 Conn., 400 (1843). The stat- 
 279; Peabody v. Speyers, 56 N. Y., ute of frauds of Connecticut was 
 
 amended in 1875. 
 
CHAP. VI.] GOODS, WARES AND MERCHANDISE. 119 
 
 and it was claimed that the defendant became liable to the 
 plaintiff thereby in the sum of $100. Waite, J., held that 
 the contract for the sale of the stock, by the terms of the 
 statute, had no validity in law. To make a parol promise 
 obligatory upon a party, it must be made upon a sufficient 
 consideration. 1 A moral obligation has been holden a suffi- 
 cient consideration to support an express promise, where' 
 there has been an antecedent liability, which has been re- 
 moved by some subsequent event or proceedings, and a 
 subsequent promise to pay may be enforced. That prin- 
 ciple did not apply in this case. Upon the question of part 
 performance of the contract, by the sale of the stock, the 
 court observed: " The defendant has, indeed, sold the stock; 
 but this he could have done as well without any contract 
 with the plaintiff as with it. The contract was invalid." 
 
 Judgment was directed for the defendant. 
 
 § 152. In Baldwin v. Williams, 2 the question was whether, 
 on the sale of promissory notes, the contract was required 
 to be proved by some written memorandum. 
 
 Wilde, J., thought that such contracts were within the 
 mischief the statute intended to prevent, and that the words 
 goods and merchandise were sufficiently comprehensive to 
 embrace promissory notes. 
 
 The word chattels is not used in the statute of frauds 
 of Massachusetts, but the court held that " personal chat- 
 tels are movable goods," and, so far as these words may re- 
 late to the questions under consideration, they seem to have 
 the same meaning. 
 
 And Grover, J., in Peabody v. Speyers, 3 observes that a 
 contract for the sale of gold to an amount exceeding fifty 
 dollars is equally within the statute of frauds as that for 
 the sale of any other personal property. When the subject 
 of such a contract, it is regarded, not as money, but as a 
 commodity ; and the contract must be made in compliance 
 with the statute of frauds, or it will be void. 
 
 i Cook v. Bradley, 7 Conn., 62. » 56 N. Y., 230, 234 
 
 2 3 Met. (Mass.), 367. 
 
CHAPTER YII. 
 
 OF SALES OF GROWING CROPS. 
 
 § 153. Distinctions in sales of crops ; fructus industriales and fructus 
 naturales. 
 
 154. Rule of construction in sales of growing crops. 
 
 155. Contract to deliver a chattel not affected by the statute, although 
 
 to remain in the soil for a time. 
 
 156. Example, the case of Whipple v. Foot. 
 
 157. Difficulty of applying the rule in certain cases. 
 
 158. Crops which grow spontaneously, and by industry of the owner. 
 
 159. Hops produced by annual cultivation are deemed goods and are 
 
 within the statute of frauds ; Frank v. Harrington. 
 
 160. Another illustration ; as to corn and potatoes. 
 
 161. As to a sale of hops maturing on the vines. 
 
 162. The rule in California as to growing crops ; Goodyear v. Wal- 
 
 liston. 
 
 163. Another illustration ; Davis v. McFarlane. 
 
 164. Growing crops held not to fall within the statute of frauds. 
 
 165. The rule in Indiana as to growing crops as affected by the stat- 
 
 ute of frauds ; Bricker v. Hughes. 
 
 166. Illustration ; growing corn can be delivered. 
 
 167. Of contracts for the sale of such barley as should be raised on 
 
 farms. 
 
 168. Rule in New Hampshire : if the contract is substantially for the 
 
 goods it is within the statute ; the case of Pitkin v. Noyes. 
 
 169. Rule in England ; contract for the potatoes a given quantity of 
 
 land should produce. 
 170. , Another illustration ; Parker v. Staniland. 
 
 171. Contract for the sale of a field of grass ; under the fourth sec- 
 
 tion ; the case of Crosby v. Wadsworth. 
 
 172. Rule in Wisconsin as to contracts for the sale of growing grass ; 
 
 Wescott v. Delano. 
 
 173. Gro wing, grass not goods. 
 
 174. Grass already grown may be sold by parol ; Cutler v. Pope. 
 
 175. Rule of construction of contracts for the sale of fruit ; how far 
 
 chattels. 
 
 176. Rule adopted in Maryland as to growing fruit ; the case of Pur- 
 
 ner v. Piercy. 
 
 177. Certain deductions. 
 
OHAP. VII.] OF GEOWING CROPS. 121 
 
 § 153. As deducible from the English and American 
 cases, two distinctions are drawn in regard to sales of any- 
 thing attached to the soil. First, where, by the contract, 
 the property attached to the soil is to be transferred to the 
 vendee by the owner after severance ; and second, where, 
 by the contract, the property is to be transferred to the 
 vendee by the owner before severance from the soil. 
 
 In general, contracts arising under the former class, 
 although resting in parol, are valid under the statute of 
 frauds ; while contracts arising under the latter class are 
 void unless evidenced by writing. In other words, grow- 
 ing crops, if fructus indtistriales, are chattels ; and whether 
 mature or immature, whether before or after severance, a 
 contract of sale of them is a contract for the sale of chat- 
 tels. 
 
 On the other hand, growing crops coming under the gen- 
 eral denomination fructus naturales, while they are deemed 
 a part of the soil before severance, if they are not to vest in 
 the purchaser until after severance from the soil, a contract 
 in regard to them is executory and is for the sale of goods 
 or chattels. 
 
 § 154. Before the statute of frauds, growing crops were 
 almost uniformly adjudged to be goods. The statute 
 wrought no change in the law in this regard; it simply 
 provided for goods according as they were previously es- 
 teemed. A safe rule, therefore, would seem to be, that if, 
 before the statute, certain kinds of growing crops were held 
 to be goods and chattels, then a parol contract will be suf- 
 ficient. 
 
 Mr. Justice Blackburn has said that growing crops are 
 chattels, but they are not goods, and that larceny could not 
 be committed on them at common law. He further says : 
 " Things attached to the soil are not goods, though when 
 severed from it they are ; thus, growing trees are part of the 
 land, but the cut logs are goods ; and so, too, bricks or stones 
 which are goods, cease to be so when built into a wall, — 
 they then become a part of the soil. ... It seems 
 
122 SALES. [chap. VII. 
 
 pretty plain upon principle that an agreement to transfer 
 the property in something that is attached to the soil at the 
 time of the agreement, but which is to be severed from the 
 soil and converted into goods before the property is to be trans- 
 ferred, is an agreement for the sale of goods within the mean- 
 ing of the 9th Geo. h ch. 14, if not of the 29th Car. 2, ch. 3. 
 " And when the agreement is that the property is to be 
 transferred before the thing is severed, it seems clear 
 enough that it is not a contract for the sale of goods; it is a 
 contract for a sale, but the thing to be sold is not goods." 1 
 Hence, it follows, that, if the contract be for the sale of the 
 thing after it has been severed from the land, so as to be- 
 come the subject of larceny at common law, it is a contract 
 for the sale of goods, etc., within the statute of frauds. 
 
 § 155. In his valuable treatise on the statute of frauds, 
 Mr. Browne deduces the following rule from the English 
 cases : " If the contract, when executed, is to convey to the 
 purchaser a mere chattel, though it may be in the interim 
 a part of the realty, it is not affected by the statute ; but if 
 the contract is, in the interim, to confer upon the purchaser 
 ' an exclusive right to the land for a time, for the purpose of 
 making a profit of the growing surface,' it is affected by 
 the statute, and must be in writing, although the purchaser 
 is, at the last, to take from the land only a chattel." 2 
 
 Although this is said in reference to the fourth section of 
 the English statute of frauds, which does not exempt leases 
 for a year and less from its operation, it has some applica- 
 tion here. 
 
 It has been held, however, that where leases for a year 
 and less are excepted from the operation of the statute of 
 frauds, a contract for the sale of growing crops, — the prod- 
 ucts of periodical cultivation, is not affected by the statute, 
 
 1 1 Blackburn on Sales, 9; 4 Kent's 365; Watts v. Friend, 10 B. & C, 
 
 Com., 5th ed., 450; Dunne v. Fergu- 446. 
 
 son, 1 Hayes (Irish) R., 542; Steph- 2 Browne on the Stat, of Frauds, 
 
 en's N. P. , 1971 ; Benjamin on Sales, § 000. 
 118; Parker v. Staniland, 11 East, 
 
CHAP. VII. J OP GBOWING CROPS. 123 
 
 although it may confer upon the purchaser an exclusive 
 right to the land while the crop is ripening and being 
 harvested. 
 
 § 156. If the subject of the contract be produced by the 
 nianurance and industry of man, "in sowing and reaping, 
 planting and gathering," such, for instance, as crops of 
 grain, cotton, potatoes and vegetables, or such as may be 
 properly denominated fructus industriales, it is deemed 
 goods and chattels ; but otherwise where it is the natural 
 production of the earth, fructus natarales, such as fruit on 
 trees, grass 1 , timber, and the like. 1 Some cases have drawn 
 the distinction between products which go to the executor, 
 and products which go to the heir; the former in contem- 
 plation of law are deemed chattels, the latter interests in 
 land. 
 
 - These general distinctions existed before the statute of 
 frauds was passed, and ever since have received recognition 
 by the courts. 2 
 
 For instance, take the early case of Whipple v. Foot. 3 
 There it was held that wheat, growing, is a chattel, and 
 may be sold as such on execution. In such a case, also, the 
 purchaser is entitled to the right of ingress and egress to 
 gather the crop.* On this last question, however, the Eng- 
 lish decisions are not altogether consistent. 5 
 
 The purchaser of growing grain, under such executions, 
 acquires the right of leaving the grain upon the soil until 
 its maturity, and also the right of entering upon the land 
 to gather and carry away the crop. 6 
 
 1 Bernal v. Hovious, 17 Cal., 541 ; 248 ; Graves v. Weld, 5 Barn. & A., 
 Vischer v. "Webster, 13 id., 58; 105 ; Walker v. Sherman, 20 Wend., 
 Westbrook v. Eager, 16 N. J., 81; 638; Bostwick v. Leach, 3 Day 
 Benjamin on Sales, 120 ; Evans v. (Conn.), 484. 
 
 Roberts, 5 B. &C, 836. 4 Stewart v. Doughty, 9 Johns., 
 
 2 Williams on Executors, 596; 112. 
 
 Delaney v. Boot, 99 Mass., 546. 6 Crosby v. Wadsworth, 6 East, 
 
 3 2 Johns., 422; Peacock v. Pur- 611; Parker v. Staniland, 11 id., 
 
 vis, 2 Brod. & B., 362. See, also, 363. 
 
 Carrington v. Roots, 2 Mees. &W., 6 Bloom v. Welsh, 27 N. J., 177. 
 
124 SALES. [chap. to. 
 
 § 157. The conflict of opinion as to whether certain kinds 
 of growing crops are comprehended under the term fructus 
 industriales, ov fructus naturales, has arisen in part from the 
 fact that some products of the soil are not annual, as emble- 
 ments, nor permanent, as grass or trees, and do not yield a 
 crop until the second or third year, or yield successive crops 
 for a term of years before being exhausted, — such as clover, 
 madder, teazle, and the like. 1 The authorities, although 
 meagre on the subject, seem to hold, and Lord Denman in 
 an important case, 2 in effect, held, that the crop of the first 
 year, in such cases, would be fructus industriales, but that 
 crops of subsequent years, " like fruit on trees planted by 
 tenants, would be fructus naturales, unless requiring culti- 
 vation, labor and expense for each successive crop, as hops 
 do, in which case they would be fructus industriales, until 
 exhausted." # 
 
 As far as the cases have gone on this subject, applicable 
 to the statute of frauds, the law seems to be quite well set- 
 tled. 
 
 A review of the authorities and cases, however, will be 
 found useful and interesting. 
 
 § 158. It appears to have been decided at an early period 
 in England and in this country, that, if the subject grows 
 spontaneously, without cultivation, it is to be deemed a part 
 of the realty. 
 
 , On the other hand, some well-considered authorities, since 
 the early case of Latham v. Atwood, 3 have held that such 
 things as grow by manurance and industry of the owner, and 
 which depend upon his labor and cultivation and go to en- 
 hance the personal estate, are personal chattels, and within 
 the statute of frauds. 
 
 Hence, in the above case, it was directly held that 
 " hops " are personal property ; and the reason there given 
 is said, by an able judge, to be "very satisfactory." In 
 another early case it was held that hops growing out of old 
 
 1 Benjamin on Sales, 138, 130. ' Croke Charles, 515 ; but see Em- 
 
 2 Graves v. Weld, 5 B. & Ad., 105. merson v. Heelis, 2 Taunt., 38. 
 
CHAP. VII.] OF GROWING CHOPS. 125 
 
 roots shall go to the executor or administrator, because they 
 grow by the manurance and industry of the owner, and so 
 are emblements. 1 
 
 In Bishop v. Bishop, 2 the majority of the court were of 
 opinion that the root of hop is perennial, continuing for a 
 series of years, and would pass to the purchaser of the real 
 estate. * 
 
 § 159. In Frank v. Harrington, 3 the plaintiff entered into 
 a parol contract with the defendant, for the purchase of his 
 ■crop of hops, of about seven thousand pounds, then grow- 
 ing and maturing on the defendant's land, for the price of 
 thirteen cents per pound. The plaintiff paid $1 down, and 
 was to pay the balance when the hops were delivered at the 
 defendant's kiln and accepted by the plaintiff. 
 
 The defendant refused to deliver the hops and the plaint- 
 iff brought his action for damages. He was nonsuited, on 
 the ground that the contract was void ; the court holding 
 that the subject of the contract was real estate. The 
 plaintiff excepted and appealed. 
 
 The court, at general term, after referring to the Revised 
 Statutes, 4 as to what shall be deemed assets, viz., " crops 
 growing on the land of the deceased at the time of his 
 death," and "any kind of produce raised annually iy labor 
 and cultivation, except grass growing, or fruit not gathered," 
 said that, the statute being silent as to hops, he would de- 
 cide the question in the case upon authority independent of 
 the statute. 
 
 " As the value of the hop depends so essentially upon 
 manurance and annual cultivation," said Morgan, J., " there 
 is no reason why it should be taken out of the category 
 of ' produce raised annually by labor and cultivation,' by 
 any new interpretation of the statute of frauds." And 
 he concludes that hops growing and maturing on the 
 vines, which are produced by annual cultivation and the in- 
 
 i Fisher v. Forbes, referred to in 9 'UN.!,, 124, Gardner, C. J. 
 Viner, 373, pi. 82; 3 Bacon's Ab., » 36 Barb. (N. Y.) E., 417. 
 tit. Ex'rs and Adm'rs (H.), p. 493. <3 R. S„ 83, §§ 5, 6. 
 
126 SALES. [chap. VII. 
 
 dustry of the owner, are personal chattels, within the mean- 
 ing of the statute, and as such subject to sale like other 
 personal property. A new trial was granted. 
 
 § 160. In Bodwell v. Phillips, 1 it was decided that hops 
 are fruotus industriales ; and referring to Waddington v. 
 Bristow, 2 where it was held that an agreement for the pur- 
 chase of growing crops is not an agreement for the sale of 
 goods, wares and merchandise, Park, B., said, "that case 
 would now probably be decided differently." 
 
 In Jones v. Flint, 3 it was held that corn and potatoes 
 were goods and chattels within the meaning of the statute 
 of frauds; that they are fructus industriales. 
 
 So Littledale, J., in Evans v. Eoberts, 4 held that any 
 growing produce of the earth reared by labor and expense, 
 in actual existence at the time of the contract, whether it 
 be in a state of maturity or not, is not to be considered as a 
 sale of an interest in or concerning land. 
 
 And Bay ley, J., said it was a contract for the sale of 
 goods. 
 
 § 161. In Waddington v. Bristow, 5 the question was 
 whether the contract for the sale of all the hops that should 
 grow upon twenty-two acres of land, to be delivered in 
 pockets at a certain place, fell within the seventeenth sec- 
 tion and was thus exempted from the stamp act, 23 Geo. 3, 
 ch. 58, § 1. 
 
 Although this case was held to be within the stamp act, 
 it would seem that, upon the principle of the decisions in 
 some earlier cases, it would not, because it was a contract 
 incapable of being executed at the time when it was made. 
 
 "While the opinion of the court was unanimous in holding- 
 that the case did not fall within the exemption, the judges 
 gave different reasons for their judgment. Some of them 
 holding that it was an agreement for the sale of goods, 
 
 1 9 M. & W., 503. 5 2 Bos. & Pul., 452 ; "Warwick v. 
 
 2 2 B. & P. , 452. Bruce, 2 M. & S. , 205 ; Teal v. Auty, 
 
 3 10 Ad. & El., 753. 2 Brod. & Bing., 99. 
 *5B. &C..837. 
 
CHAP. VII.] OF GROWING CROPS. 127 
 
 and something more ; others, that at the time the hops did 
 not exist in the state of goods; that it was a speculative 
 bargain ; and that the vendee had an interest in the whole 
 produce of that part of the vendor's farm which consisted 
 of hop-grounds ; and that the contract might fall within 
 the exemption of the act, notwithstanding the hops were 
 not in the state of goods at the time of the making of the 
 contract. 
 
 The reasons given by Morgan, J., in Frank v. Harring- 
 ton, 1 why hops maturing on the vines should fall within 
 the operation of the statute as to the sale of goods, etc., 
 seem Very satisfactory. 
 
 § 162. In California, by a long line of decisions, it is 
 held that contracts for the sale of growing crops, fructus 
 industriales, the product of periodical planting and culti- 
 vation, are valid, although not evidenced by a memoran- 
 dum in writing. 
 
 Goodyear v. Walliston 2 was an action to recover posses- 
 sion of a certain amount of hay, wheat and barley. Good- 
 year was owner of a tract of land in Solano county. He 
 made a contract with one McGrane, whereby McGrane 
 was to enter upon the tract, and cultivate as much as he 
 could, and cut hay on the balance, Goodyear furnishing the 
 money necessary; in consideration whereof one-fourth of 
 the crop was to be reserved for and go to Goodyear; the 
 rest was to be taken by Goodyear and disposed of, and 
 after deducting from the proceeds the amount of the ad- 
 vances made and the indebtedness due him, he was to pay 
 the balance to McGrane. McGrane planted wheat and bar- 
 ley, which he cut and stacked in July, and sold the same, 
 including the hay, to Goodyear, who took possession and 
 was in possession of the grain and hay when the defendants 
 seized the same. It appeared that prior to the crop being 
 gathered, McGrane gave his note for $1,500 to "Walliston, 
 
 1 36 Barb., 417. id., 661; Stevens v. Stewart, 3 id., 
 
 2 42 Cal., 11; Bernal v. Hovious, 141. 
 17 id., 541; Bours v. Webster', 6 
 
128 SALES [OHAP. VII. 
 
 the defendant, to secure which he executed a mortgage 
 upon his growing crops. The mortgage was recorded. 
 McGrane confessed judgment in favor of the defendant, 
 August 15, and under that judgment, about three weeks 
 after the grain had been stacked, Sheriff Hobbs, under an 
 execution, seized the property in question. 
 
 Judgment was given in favor of the plaintiff. 
 
 Sprague, J., upon the appeal, said: "The defendant 
 Hobbs was clearly a trespasser, upon the facts as found ; as 
 no portion of the property was at the time subject to exe- 
 cution as the property of McG-rane; and Walliston, in di- 
 recting the levy, was a joint trespasser with him as* to all 
 the property except the wheat and barley." He held that 
 the sale to the plaintiff was made in good faith, and for a 
 valuable consideration ; that the mortgagee did not claim 
 to have taken, or attempted to take, possession, until the 
 plaintiff had been " in the actual possession five days," and 
 that the plaintiff, as purchaser, took the grain relieved of 
 the defendant Walliston's mortgage lien. 
 
 The judgment was affirmed. 
 
 That the title to the growing crop, as it was grown, 
 vested in Goodyear, who was entitled to retain one-fourth 
 to his own use, was concurred in by Ehodes, 0. J., and 
 Crockett, J. 
 
 § 163. The case of Davis v. McFarlane J is interesting 
 and important. 
 
 It was an action for the conversion of three thousand 
 bushels of wheat. 
 
 One Bowen plowed and sowed in wheat about two hun- 
 dred and forty acres of the public lands of the United 
 States. The lands were uninclosed. 
 
 By a verbal contract, Bowen sold the growing crop at 
 the price of $2.25 per acre. Twenty dollars was paid down ; 
 another payment was to be made on April 1st, and the rest 
 when the crop should be harvested. Bowen did not live on 
 the premises, which was fifteen miles distant, nor was anv 
 
 ^Cal., 634. 
 
CHAP. VII.J OF GROWING CROPS. 129 
 
 one in actual possession of the land ; he did not go to the 
 crop and deliver possession at the time of the sale, but said 
 to the plaintiff, " you will either have to go out there, or 
 keep a man to take care of it." The plaintiff agreed, as 
 part of the contract, to guard the crop from cattle, at his 
 own risk, and cut and .harvest it at his own expense. 
 
 Several days after the sale, the plaintiff went and exam- 
 ined the crop ; no person was there, nor was there any indi- 
 cation that any person had been there for a long time. 
 
 The plaintiff remained on the place two nights and three 
 days, continuously, at that time. 
 
 On April 1st, when the remainder of the first payment 
 of $200 was to be made, according to contract, the same 
 was tendered to Bowen, who refused to accept it, on the 
 ground that he had sold the crop to another person. 
 
 It appeared in the case that the plaintiff had united with 
 other owners of crops in the vicinity, in contributing 
 moneys to pay the expense of keeping cattle from the 
 crops, — the cultivated fields in the neighborhood being 
 generally uninclosed. 
 
 From the 1st of April, the person so employed protected 
 the crop from, incursions of cattle down to July 1st. Dur- 
 ing that period the plaintiff frequently visited the place and 
 looked after the crop. 
 
 It further appeared that Bowen, on March 25th, nine days 
 after his sale to the plaintiff, gave a bill of sale to the de- 
 fendant of all his right to the land and crop, for $818, of 
 which $50 was paid at the time. 
 
 "When this second sale was made Bowen was four miles 
 from the premises. 
 
 The defendant at the time was ignorant of the sale made 
 to the plaintiff, but knew of the fact before making any 
 further payment. 
 
 After the sale, one Tifton, at the request of Bowen, went 
 with the defendant to the premises and put him in posses- 
 sion, there being no one there at the time. 
 
130 SALES. [CHAP. VII. 
 
 The defendant refused to contribute anything toward 
 protecting the crop from incursions of cattle. 
 
 From the time the defendant took possession, much con- 
 troversy continued between the plaintiff and himself. When 
 the crop had matured, the defendant, against the protest of 
 the plaintiff, harvested the crop, which yielded three thou- 
 sand bushels, valued at $3,000. 
 
 The plaintiff recovered a judgment. 
 
 The defendant appealed. 
 
 The appellant made two principal points : 
 
 " First. That the sale to the plaintiff was of an interest 
 in land, within the meaning of the sixth section of the stat- 
 ute of frauds, and, therefore, void because not in writing. 
 
 " Second. If the sale was of chattels, there was no imme- 
 diate delivery, followed by an actual and continued change 
 of possession, within the meaning of the fifteenth section 
 of the statute, and the sale was therefore void as against 
 the defendant, who is a subsequent purchaser in good 
 faith." 
 
 In declining to sustain either of these points, the court, 
 Sanderson, J., said: "Contracts for the sale of growing- 
 periodical crops —fructus industrials — are not within the 
 statute of frauds, and therefore need not he- made in writing. 
 After some vacillation this has become the settled doctrine." 
 
 Nor is this rule, said the court, affected by the circum- 
 stance that the purchaser is to have possession of the land 
 for the purpose of raising the crop and harvesting it when 
 matured. 
 
 " A growing crop," said the court, " while growing and 
 until ready for the harvest, is, also, unaffected by the fif- 
 teenth section of the statute in relation to the sale of eoods 
 and chattels in the possession and under the control of the 
 vendor. A growing crop, until ready for the harvest, can- 
 not, by itself, become the object of a delivery, and can only 
 be delivered into the possession of the vendee by delivering 
 to him the possession of the land also, of which it is a part. 
 
CHAP. VII.] OF GKOWING CROPS. 131 
 
 " We do not consider that chattels thus situated fall within 
 the rule prescribed by the statute in relation to the imme- 
 diate delivery and actual and continued change of posses- 
 sion of goods and chattels in the possession and under the 
 control of the vendor, at least until nature has prepared 
 them for delivery to the reaper." 
 
 In this connection, the learned justice very sensibly ob- 
 serves that, to so construe the statute, would make it an 
 absolute interdiction upon the sale of growing crops, unless- 
 the vendor is willing to abandon the possession of his farm 
 to the vendee at the same time. 
 
 The judgment and order were affirmed. 
 
 The above case presents so many points of interest, it has 
 been deemed desirable to give the facts and law of the case 
 at considerable length. 
 
 § 161. Marshall v. Ferguson 1 was an action to recover 
 $650 for barley and wheat alleged to have been sold by the 
 plaintiff to the defendant. 
 
 The contract was for the growing crop of those grains, 
 then growing on lands in the possession of several persons. 
 After the contract was made, the defendant resold the same 
 to the parties in possession of the land, and had received 
 his pay from all of them, except one. 
 
 The agreement of defendant was to pay the above men- 
 tioned sum in grain, at the market price, at a specified time, 
 but he failed to deliver the grain. 
 
 Crocker, J., said that the crops contracted for were the 
 product of periodical planting and cultivation, and the law 
 appeared to be well settled, both in the English and Ameri- 
 can courts, that sales of growing crops of that hind do not 
 fall within the -provision of the statute of frauds relating to 
 sales of an interest in real estate, and, therefore, such sales, 
 though not in writing, are valid. 
 
 It was held in a Wisconsin case, in an action on a contract 
 
 1 23 Cal., 651 ; Smith v. Bryan, 5 Buffington v. Curtis, 15 Mass., 528; 
 Maryland, 140 ; Safford v. Annis, 7 Browne on Stat, of Fr., 250-258, 
 Me., 168; Joy v. Sears, 9 Pick., 4; 
 
132 SALES. [chap. VII. 
 
 for the sale of a crop of tobacco, not yet raised, that the 
 title remains in the vendor until actual delivery, and that 
 the purchaser may refuse to accept when the tobacco is de- 
 livered. 1 
 
 § 165. In Indiana, where the statute of frauds reads " no 
 ■contract for the sale of any goods," the decisions seem to 
 have uniformly held, since Northern v. The State, 2 that 
 growing crops, raised annually by labor, are the subject of 
 sale as personal property, before maturity, and that their 
 sale does not necessarily involve an interest in the realty 
 requiring a written agreement. 
 
 This view fairly accords with many well considered cases 
 in England and in this country. 
 
 In Bricker v. Hughes, 3 one Guffy, after making several 
 attempts to sell certain corn still standing in the field, sold 
 it to the defendant Hughes. It was bought as " eight hun- 
 dred bushels, more or less." Something was paid at the 
 time, and Guffy subsequently delivered about seventy bush- 
 els toJBEughes. 
 
 In the case there was evidence tending to show that the 
 plaintiff, after the alleged purchase, told the defendant that 
 he had an account against Guffy, and that the defendant 
 virtually agreed that if he got " the full quantity, eight 
 hundred bushels," there would be something going to Guffy 
 over his own account against him, and he would " save 
 Bricker's account out of it." And also, that Guffy had made 
 a written contract with the plaintiff to sell to him the corn, 
 and that under that contract Guffy had directed his em- 
 ployee. Chambers, " to gather the corn, and deliver it in said 
 crib for Bricker," which was done. Bricker paid for the 
 corn in a bill for medical services, and Guffy paid for gather- 
 ing the corn." 
 
 The corn was hauled to a crib, belonging to the defend- 
 
 1 Olson v. Mayer, 56 Wis., 551; 21 Ind., 113 (1848). 
 
 Baker v. Henderson, 24 id., 509. »4 Ind., 146; Sherry u. Picken, 10 
 
 See McHvane v. Harris, 20 Mo., id., 375; Austin v. Sawyer, 9 
 
 457; 64 Am. Dec, 496. Co wen, 39. 
 
CHAP. VII. J OF GROWING OKOPS. 
 
 133 
 
 ant, on the "Wabash river; the defendant's clerk having 
 given Bricker permission thus to occupy it, without know- 
 ing at the time what corn it was that was to be placed in 
 it. About six hundred and fifty bushels were put in the 
 crib. 
 
 Hughes, finding the corn in his crib, took it on a boat 
 "down the river," and sold it. 
 
 It was contended, on the appeal, that no property passed 
 to Hughes. 
 
 The court, after reviewing the character of the contract, 
 and the circumstances connected with it, said, " as Bricker 
 bought afterwards with full knowledge of said sale, he has 
 no pretense on which to claim the corn." 
 
 The judgment of the court below in favor of" the defend- 
 ant was affirmed. 
 
 § 166. Weatherby v. Higgins 1 was in assumpsit for a 
 breach of contract for the sale of hogs and corn. 
 
 Several instructions were tendered to the court below by 
 the plaintiff; in effect that the jury cannot find the amount 
 of earnest money paid ; that corn growing in the field is 
 not susceptible of delivery. 
 
 The court, Hovey, J., held these instructions to have been 
 correctly refused. He said : " Growing corn can be as easily 
 delivered as any other article of commerce." 
 
 The decisions in Indiana are in direct accord with the 
 adjudications of California and some other states. 
 
 § 167. In Yan Sickle v. Nester, 2 the plaintiff, in the 
 spring of 1880, contracted to sell and deliver to the defend- 
 ant all the barley that he should raise during the season 
 
 1 6Ind.,74. See, also, Matlock v. parol without writing, and that an 
 
 Fry, 15 id., 483; Miller v. State, 39 action of trespass quare clausum 
 
 id., 267 ; Britain v. McKay, 1 Ired., /regit for the loss of the crop would 
 
 265; Eos3 v. Welch, 11 Gray, 235; lie. " The general language of the 
 
 Moreland v. Myall, 14 Bush, 474. authorities," he says, "is to this 
 
 2 34 Hun, 65. In Austin v. Saw- effect, that the grantee repturce 
 
 yer, 8 Cow., 39, Kent, Ch. J., held terra, or herbugii terrce, may rnain- 
 
 that wheat growing is a mere chat- tain trespass, though he has not the 
 
 tel and the property in it passes by soil." 
 
134 SALES. [CHA.P. Til. 
 
 upon the two farms, one at Geneva, the other at Shorts- 
 ville, excepting such as should be necessarily reserved for 
 seed, and that he should " plant eighty acres." The price 
 to be paid was seventy-five cents per bushel. 
 
 The Geneva farm was worked by one Wright, under a 
 contract that he should have one-half of the crops raised 
 thereon. He sold and delivered his part of the barley to 
 other persons. 
 
 The defendant refused to pay the balance claimed to be 
 due by the plaintiff, on the ground that only one-half of 
 the barley raised upon the Geneva farm had been delivered 
 to him, and he was entitled to the other half. 
 
 The defendant refused to receive other barley tendered 
 by the plaintiff. In this, says the court, he was " guilty of 
 a breach of the contract, and this breach dispensed with 
 the necessity of the plaintiff's offering to deliver the 
 rest." . . . "If the barley was not of the quality re- 
 quired by the contract, then he had a right to refuse to 
 accept." The jury found for the plaintiff. 
 
 The judgment was affirmed. 
 
 § 168. In Pitkin v. ISToyes, 1 the defendant agreed to raise 
 three acres of potatoes, and deliver them to the plaintiffs for 
 twenty cents a bushel. Whether it was agreed that the 
 contract should include the crop of 1864, as well as that of 
 1863, the evidence was conflicting. The defendant, in 1863, 
 raised three acres of potatoes and delivered a part of them 
 to the plaintiffs before any question arose as to the price. 
 The plaintiffs claimed that the contract was not binding be- 
 cause it was not in writing, and offered to pay eighteen 
 cents a bushel; that they agreed to pay twenty cents a 
 bushel if the defendant would raise three acres of potatoes 
 in 1864 and deliver them at plaintiffs' mill at that price; 
 that defendant accepted said offer; that twenty cents a 
 bushel was paid in 1863, and that the bargain for 1864 was 
 concluded January 30, 1S64. 
 
 The defendant excepted to certain instructions; the jury 
 
 148N. H.,294. 
 
CHAP. VII.] OF GKOWING CEOPS. 135 
 
 disagreed, and, on motion, the court reserved the case for 
 the purpose of determining questions which would arise at 
 another trial. The main point was, whether this was a con- 
 tract for work, labor and materials, or a contract of sale of 
 potatoes. If the former, it was not within the statute of 
 frauds ; if the latter, it was. The distinctions are very nice 
 in such cases. " Upon the whole," says Bellows, J., " we' 
 are satisfied that if the contract be substantially for the- 
 goods, it is within the statute, whether they are then manu- 
 factured or not; but it is otherwise if the contract be to 
 manufacture and deliver the goods, that is, if the labor and 
 skill of the seller is stipulated for and makes part of the 
 contract. 
 
 It is obvious that the labor and skill of a workman may 
 be bargained for in this way as well as in any other, — the 
 compensation being in the price of the article he makes ; 
 and the only question in this particular case is whether the 
 skill and labor of the workman was especially contracted 
 for so that the employer was entitled to that, and could be 
 obliged to take no other." 
 
 The court held that, as the question was a mixed one of 
 law and fact, it would be proper to leave it to the jury, to 
 find whether the contract was essentially for the work and 
 labor and materials of the defendant in raising the potatoes, 
 so that he was bound himself to raise them, or whether it 
 was substantially a sale .of potatoes, which he might raise 
 himself, or procure by purchase or otherwise. If it was the 
 former, it would not be within the statute of frauds ; but if 
 the latter it would be. 1 
 
 On the other question presented in the case, as to the con- 
 sideration for the defendant's agreement, the court say, if 
 the plaintiff agrees to take and pay for the crop of pota- 
 toes at the price fixed, that would be a sufficient consid- 
 eration, as also would the compromise of doubtful and 
 conflicting claims be to uphold an agreement. 2 
 
 iLamb v. Crafts, 12 Met., 353; 2 Barlow v. Ocean Ins. Co., 4 
 Browne on Statute of Frauds, § 308 ; Met. , 270 ; Tuttle v. Tuttle, 12 Met. , 
 Cason v. Cheely, 6 Ga., 554. 551; Gates v. Shatts, 7 Mich., 127; 
 
136 SALES. [chap. VII. 
 
 § 169. In Evans v. Eoberts, 1 the plaintiff agreed to sell 
 and the defendant agreed to buy of him " a cover of pota- 
 toes then in the ground," the plaintiff agreeing to dig and 
 deliver the potatoes at a stated price ; the defendant, at the 
 time, paying " one shilling earnest." 
 
 The action was brought in assumpsit " for crops of pota- 
 toes bargained and sold ;" and the defendant contended that 
 the contract was for the sale of an interest in land, and be- 
 ing verbal was accordingly void. As was evidenced in the 
 case, the vendor was to raise the potatoes from the ground 
 at the request of the vendee. 
 
 " The effect of the contract," said the learned Bayley, 3., 
 " was to give to the buyer a right to all the potatoes which 
 a given quantity of land should produce, but not to give him 
 any right to the possession of the land ; he was merely to 
 have the potatoes delivered to him when their growth was 
 complete." 
 
 Accordingly, the court decided that the contract was 
 simply for the " sale or delivery of things which, at the time 
 of the delivery, should be goods and chattels." 
 
 § 170. The case of Parker v. Staniland 2 is interesting. 
 There potatoes, mature in the ground, were sold at a stated 
 price per sack, to be removed immediately, and the con- 
 tract was held to be a sale of chattels, solely, within the 
 statute of frauds ; because the contract was in respect to 
 the potatoes and nothing else. As they were to be taken 
 away at once, they could derive no further benefit from be- 
 ing in the ground, and the land was considered as a mere 
 warehouse for the potatoes. 
 
 But in Emmerson v. Heelis, 3 where growing turnips were 
 sold and no specified time was agreed upon for their re- 
 moval, and it not appearing as to the degree of their ma- 
 turity, it was decided to be an interest in land. Here the 
 land was to be something more than a warehouse for the 
 
 Parker v. Way, 15 N. H., 45; thews, 4 M. & W., 343; Warwick 
 
 Burnham v. Dunn, 35 N. H., 560. v. Bruce, 2 Maule & Sel., 205. 
 
 i 5 B. & C, 836. 3 2 Taunt., 38. 
 
 2 11 East, 365 ; Sainsbury v. Mat- 
 
CHAP. VII.J OF GROWING CROPS. 137 
 
 turnips; it was to afford support and sustenance to the tur- 
 nips for an indefinite period. There are numerous cases, 
 however, holding that a sale of a growing crop, which is 
 not to vest in the purchaser until after the same has been 
 severed from the soil, is an executory contract for the sale 
 of goods, and falls within the statute. 1 
 
 § 171. A case which may fairly be contrasted with Par- 
 ker v. Staniland 2 is that of Crosby v. Wads worth. 3 There 
 it appeared that farmer Wadsworth, of Claypole, in Lin- 
 colnshire, had a field of grass which Crosby desired to pur- 
 chase. It was agreed that C. should have the grass for 
 twenty guineas, he to have the trouble of mowing and 
 making it into hay. Soon afterwards, however, W had a 
 better offer for his grass (prospective hay), and so broke his 
 contract with C. In C.'s action for the breach, he recov- 
 ered nothing, the court holding that the contract was one 
 which had to do with land, and therefore should have been in 
 writing/ that it was under the fourth section of the statute 
 of frauds. By these and other cases cited it will be readily 
 seen that it is somewhat difficult to extract a clear and sat- 
 isfactory rule for determining when a sale of growing crops 
 falls within the seventeenth and when within the fourth 
 section of the statute of frauds. 
 
 § 172. The case of Wescott v. Delano * presents the ques- 
 tion whether the growing grass goes to the grantee of the 
 land, where it has been previously sold by the grantor, 
 without notice to the grantee of the land. 
 
 In the court below the defendant asked to have the jury 
 instructed, that if H. W., one of the plaintiffs, conveyed the 
 land on which the hay was cut to George W. Delano (the 
 defendant was William Delano), by deed containing no res- 
 ervation of the grass growing upon the land, and so con- 
 
 1 Edwards v. Grand Trunk Rail- 39 Ind., 267; Purner v. Piercy, 40 
 
 way Co., 54 Me., 105; Bryant v. Md., 212. 
 
 Crosby, 40 id., 9; Kingsley v. Hoi- 2 11 East, 362. 
 
 brook, 45 N. H. , 313 ; Buck v. Pick- 3 6 East, 602 (1805). 
 
 well, 27 Vt., 157; Ross v. Welch, * 20 Wis., 514. 
 11 Gray (Mass.), 235 ; Miller v. State, 
 
138 SALES. [CHAP. VII. 
 
 veyed it before the grass was cut, then "Wescott could not 
 acquire any right td the grass or hay unless by purchase 
 from or consent of George "W. Delano, made after the de- 
 livery of that deed to him. 
 
 Cole, J., held that the circuit court erred in refusing so to 
 instruct the jury. 
 
 The learned justice concedes that there is " no little con- 
 flict among the authorities upon the point whether a parol 
 agreement for the sale of growing trees, fruit, grass and 
 other natural products of the earth, with the right on the 
 part of the purchaser to enter upon the land and remove 
 them, is or is not a contract for the sale of an interest in 
 land, within the meaning of the statute of frauds." 
 
 He refers to Eodwell v. Phillips, 1 where Lord Abinger 
 expressed grave doubts on the question, and spoke of the 
 uncertainty of the law. 
 
 Judgment in favor of the plaintiff was reversed, and a 
 new trial awarded. 
 
 § 173. The question whether growing grass can be lev- 
 ied upon as a chattel, under an execution against the owner 
 of the land, when it is turned out on the execution by the 
 defendant, or when such levy is made by and with the parol 
 consent of such defendant, is discussed in the Bank of Lan- 
 singburgh v. Crary. 2 There, as in Green v. Armstrong, 3 the 
 distinction was recognized between growing crops, which 
 are the annual produce of labor and cultivation of the earth, 
 and the natural produce of the earth, which grows sponta- 
 neously and without cultivation. The former are deemed 
 chattels; the latter are an interest in land until severed 
 from the land. Hence, grass, after being severed, may be 
 seized as chattels under an execution. But growing grass 
 does not come within the description of goods and chattels, 
 and cannot be seized as such under a fieri facias; it goes to 
 the heir and not to the executor. 4 
 
 1 9 M. & W., 501. s 1 Denio, 552. 
 
 2 1 Barb. , 542. « Evans v. Roberts, 5 B. & C. , ! 
 
CHAP. VII.] OF GROWING CEOPS. 139 
 
 § 174. In Cutler v. Pope, 1 which was an action of tres- 
 pass for taking a quantity of hay, the grass standing when 
 sold, and the sale being by parol, it was claimed that the 
 contract was void under the statute of frauds ; but the court 
 decided that grass already grown and in a condition to cut, 
 as the grass in question was, might be sold by parol, and 
 that there is no objection to such sale arising from the 
 statute. 
 
 § 175. In regard to the sale of fruit, the rule which 
 should distinguish between real and personal property under 
 the statute of frauds is somewhat arbitrary, owing to the 
 fact that much fruit is grown by great annual labor and 
 much by little cultivation. 
 
 Nor can the rule be varied so as to meet the changes 
 which occur in the cultivation of such products. Touching 
 the question as to whether growing fruit falls within the 
 statute of frauds, it is held that there is nothing in the fruit 
 or vegetable which is an interest in or concerning land, 
 when severed from the soil; they are alike mere chattels, 
 and the severance may be in fact, as when they are cut and 
 removed from the ground; or in law, as when they are 
 growing, the owner in fee of the land, by conveyance, sells 
 the land, reserving them by express provision. 
 
 As to sales of growing fruit, the court of Maryland and 
 some other states have passed upon the question. 
 
 An able authority has declared it to be well settled that 
 a contract for the sale of fruits of the earth, ripe, but not 
 yet gathered, is not a contract for any interest in lands, and 
 so not within the statute of frauds, though the vendee is to 
 enter and gather them. 2 
 
 § 176. The statute of frauds of Maryland is the same as 
 the English statute. The question whether a contract for 
 the sale of growing fruit is affected by the statute of frauds 
 was passed upon in Purner v. Piercy. 3 
 
 1 13 Maine, 377. 4 id. , 476 ; Bryant v. Crosby, 40 Me. , 
 
 2 1 Greenl. Ev., § 271. 9-23; Cutler v. Pope, 13 id., 377. 
 
 8 40 Md., 212; Elliott v. Peterson, 
 
140 SALES. [CHAP. VII. 
 
 It was there decided that a growing crop of peaches, or 
 other fruit, requiring periodical expense, industry and at- 
 tention in their yield and production, may be properly 
 classed as fructus industrials. 
 
 The court, Stewart, J., substantially said that it would 
 be giving to the statute of frauds a very latitudinarian con- 
 struction to bring such cases within the mischief designed 
 to be avoided by the statute. 
 
 The above case arose out of a parol contract by which the 
 plaintiff agreed to sell to the defendant the crop of peaches 
 then growing in his orchard, at a specified price, the de- 
 fendant agreeing to gather and remove the peaches as they 
 became ripe. 
 
 The court quoted with approval the deductions contained 
 in Browne on the Statute of Frauds, which language is given 
 in section. 155 of this chapter, and concluded that, upon 
 the facts in this case, it would be a perversion of the objects 
 of the statute of frauds to hold as invalid the sale, in other 
 respects legal, of the growing crop of peaches, with no in- 
 tent of the parties to sell or purchase the soil, but affording 
 a mere license, express or implied, to the purchaser to go 
 upon the land to gather the fruit and remove the same. 
 
 The judgment in favor of the plaintiff was affirmed. 
 
 The above is one of the most recent, full and satisfactory 
 cases on this particular subject. 
 
 § 177. The following deductions may be reached from 
 the foregoing cases : That a contract for growing crops in 
 every case takes its character of realty, or personalty, from 
 the principal subject-matter of the contract and the intent 
 of the parties. That a sale of any growing produce of the 
 earth, in actual existence at the time of the contract, whether 
 it be in a state of maturity or not, is not a sale of an interest 
 in or concerning land, but of personalty. It is fructus in- 
 dustriales. It is not affected by the statute of frauds. In 
 other words, as is said by an able authority : " If the contract, 
 when executed, is to convey to the purchaser a mere chattel, 
 though it may be in the interim a part of the realty, it is 
 
CHAP. VII.] OF GROWING CKOPS. 141 
 
 not affected by the statute of frauds." If, however, the con- 
 tract contemplates that the purchaser is to have an exclusive 
 " right to the land for a time, for the purpose of making a 
 profit of the growing surface," the rule would be otherwise. 
 And, in general, it seems to be well settled, that contracts 
 for the sale of growing periodical crops — raised by the 
 manurance and industry of man — do not fall within the 
 operation of the statute of frauds. 
 
CHAPTER VIII. 
 
 OF CONTRACTS FOR THE SALE O^ GROWING TREES AND 
 
 TIMBER. 
 
 § 178. Principle governing the sale of standing trees. 
 
 179. Standing trees regarded as personalty, when. 
 
 180. Distinctions drawn in the cases as to personalty and realty in 
 
 regard to growing trees ; Kingsley v. Holbrook. 
 
 181. Construction of contracts for the sale of standing trees ; as to 
 
 license to sever them ; the case of White v. Foster. 
 183. Contracts where the owner is to cut and deliver the timber ; the 
 case of Killmore v. Howlett. 
 
 183. Contract must be for work and labor, to take it out of the stat- 
 
 ute of frauds ; Ellison v. Brigham. 
 
 184. Where subject-matter is to be converted into goods. 
 
 185. Distinction between Smith v. Fisher and Gorham v. Fisher. 
 
 186. Contract for saw-logs to be cut from a specified tract need not 
 
 be in writing. 
 
 187. Illustration of the rule where timber is severed by the vendor, 
 
 and the rule where trees are severed by the vendee. 
 
 188. What will amount to a delivery of possession of timber or trees; 
 
 the case of Smith v. Bryan. 
 
 189. Example of contract to sell and deliver bending-stuff, and not a 
 
 contract for labor, and within the statute of frauds. 
 
 § 178. Under the English and United States decisions 
 the question whether contracts for the sale of standing 
 trees rooted in the soil are to be adjudged sales of per- 
 sonalty or realty seems to depend, in a measure, upon the 
 particular circumstances surrounding the transaction itself; 
 namely, first, whether the trees are to remain for any con- 
 siderable time in the ground and are to receive sustenance 
 from the soil ; second, whether they are to be severed by 
 the vendor or by the vendee; and; third, the particular 
 terms and formalities of the contract itself. 
 
 § 179. The weight of the authorities establishes that, 
 where there has been an actual severance, or a severance by 
 
CHAP. VIII.] GROWING TREES AND TIMBER. 143 
 
 force of a previous written instrument, standing trees are 
 regarded as personal property. 1 
 
 Hence, a contract where A. agrees to cut trees standing 
 on his own land into cord-wood and deliver the same at a 
 specified price per cord to B., is not invalidated by not being 
 in writing. 
 
 § 180. The cases draw the distinction between natural 
 products of the earth, and annual products raised by the in- 
 dustry of man and the cultivation of the earth. The former 
 are adjudged to be a parcel of the land ; the latter are per- 
 sonal property. 
 
 Thus, in Kingsley v. Holbrook, 2 Sargent. J., said: "In ' 
 Massachusetts and Maine and some other states, the courts 
 have held that a sale of trees growing upon land is not a 
 sale of real estate, unless it is contemplated that they shall 
 remain so as to receive profit and growth from the growing 
 surface of the land ; unless the vendee was to have some bene- 
 ficial use of the land in connection with the trees. Where 
 such is the case, then a sale of the standing-trees is a sale of 
 an interest in the land ; otherwise not." 3 
 
 The above doctrine seems to have been well established 
 before the enactment of the statute of frauds, and the stat- 
 ute wrought no change in regard to such sales. 
 
 It is simply a contract by A. to bestow work and labor 
 upon his own material and deliver it in an improved condi- 
 tion. 4 
 
 § 181. The courts have experienced some embarrassment 
 at times in cases in determining, from the contract itself, 
 whether it was the intention of the parties to grant a pres- 
 
 1 Gooding v. Riley, 50 N. H., 77 Me., 48; Byassee v. Reese, 4 
 
 407; Hoit v. Stratton Mills, 54 id., Met. (Ky.), 373: 
 
 110; Warren v. Leland, 2 Barb., 4 Harris v. Frink, 49 N. Y., 28; 
 
 613 Babcock v. Utter, 1 Abb. App. 
 
 2 45 N. H., 313. Dec, 27, 49; Hobbs v. Wetherwax, 
 
 s 1 Lord Raymond, 182. See dis- 38 How. Pi\, 388 ; Marshall v. Fer- 
 
 tinction in Dunne v. Ferguson, 1 guson, 23 Cal., 69; Evans v. Hardy, 
 
 Hayes (Irish) R., 542; 1 Greenleaf 76 Ind., 532; O'Donnell v. Brehen, 
 
 on Ev., § 271 ; Banton v. Shorey, 36 N. J. Law, 258. 
 
144: SALES. [CHAP. VIII. 
 
 ent estate in the trees while growing, or only a right, either 
 definite or unlimited as to time, to enter and out, with a 
 title to the property when it becomes a chattel. " If," says 
 the court, Colt, J., in White v. Foster, 1 " the former be the 
 true construction, then it comes within the statute, and must 
 be in writing; if the latter, then, though wholly oral, it may 
 be enforced.'' 
 
 Upon the question of construction of such contracts, the 
 learned judge says: " For the purpose of arriving at the in- 
 tention of the parties, the mode in which the contract is 
 made, whether oral or written, and, if the latter, whether 
 under seal or not, must be regarded and may be decisive." 
 He further says : " A simple oral contract for the sale of 
 trees, to be removed in a definite time, would be construed 
 as not intended to convey an interest in the land, because 
 the parties must have known that such could not be its 
 effect ; while the same words, if incorporated into the grant- 
 ing part of a deed, with the usual clauses and formalities 
 appropriate to a- conveyance of real estate, and especially if 
 full covenants of warranty be added, will be held to convey 
 an interest in the realty and carry a present title in the 
 property to the grantee." 
 
 And on the subject of a license, he said : "So a permis- 
 sion which, if oral, would only amount to a license to do an 
 act or series of acts on another's land without possession of 
 any estate therein, would, if put in the form of an agree- 
 ment under seal, convey a permanent incorporeal right or 
 easement, and that simply because the latter is the appro- 
 priate mode of creating such an estate." 
 
 The learned judge entirely refuted the position taken by the 
 defendant in the above case, that if the contract is in writ- 
 ing and under seal, no other or greater interest passes than 
 would pass by the use of the same language in an oral sale. 
 The subject-matter of the contract is the same in both, but 
 the contracts themselves may receive a different interpre- 
 tation. As appeared in the above case, the defendant's 
 
 1 102 Mass., 375. See, also, Parsons v. Smith, 5 Allen, 578. 
 
CHAP. VIII.] GROWING TREES AND TIMBER. 145 
 
 grantor conveyed to the tenants all the standing timber on 
 the demanded premises [this was for a writ of entry to re- 
 cover land], with a proviso that it should be removed within 
 three years. He afterwards mortgaged the land by a deed 
 containing a reservation of all the trees growing on the 
 same, describing them as having been sold to the tenants, 
 and then conveyed it to the defendant with full covenants 
 of warranty, excepting only the said mortgage. 
 
 The court, in deciding that the verdict of the court below 
 in giving judgment for the demandant should be set aside 
 and a new trial had, held that the deed under which the 
 tenants claimed conveyed " an interest in real estate." " A 
 present interest of the trees was granted, and, by the rule 
 that the grant of a thing carries with it, as incident, all that 
 is necessary to its beneficial enjoyment, there passed by the 
 same deed a right to the soil upon which they grew. " x 
 
 § 182. In general the decisions hold that, if the contract 
 is that the owner of the timber land is to cut and deliver 
 the timber in a cut or improved condition, the contract is 
 binding although resting simply in parol. 
 
 Thus, in Killmore v. Howlett, 2 the defendant agreed, by 
 parol, in consideration of the plaintiff paying him $5 per 
 cord, to cut the trees, then standing and growing on eighteen 
 acres of his land, into cord-wood and deliver the same to 
 the plaintiff at his wood yard in Syracuse. The defendant 
 delivered a part of the wood, when, the price of cord-wood 
 having advanced, he refused to deliver the remainder. 
 
 At the trial below the defendant moved for a nonsuit 
 upon the ground that the contract was for the sale of an in- 
 terest in land. 
 
 The motion was denied. The defendant appealed. 
 
 iFor cases involving the same Vroom, 138; Chamberlain v. Smith, 
 
 and kindred subjects, see Giles v. 21 IT. C. Q. B., 103; Smith u Ben- 
 
 Simonds, 15 Gray, 441; Erskine v. son, 1 Hill (N. Y.), 176; Owens v. 
 
 Plummer, 7 Greenl., 447 ; Edwards Lewis, 46 Ind., 488. 
 v. Grand Trunk Railway Co., 54 2 48 N. Y, 569. 
 Me., 105; Slocum v. Seymour, 7 
 10 
 
146 SALES. [chap. VIII. 
 
 From the general term an appeal was taken to the court 
 of appeals. There the judgment was affirmed. 
 
 Gray, J., in affirming the judgment, conceded that if 
 the standing trees, which by the contract were to have been 
 cut by the defendant and delivered by him to the plaintiff, 
 had been sold while standing and " rooted in the soil," the 
 right of the plaintiff to enter and fell them and make them 
 into wood would have been a sale of an interest in the land, 
 and without any writing would have been void. 
 
 " But," said the court, " this was not a sale of the trees in 
 their standing condition, but rather a contract whereby the 
 defendant, the owner of the land, was to bestow work and 
 labor upon his own materials and deliver it in its improved 
 condition to the plaintiff." 
 
 Clearly there was no intention to give the vendee any 
 property in the trees until they were severed from the free- 
 hold. The contract, therefore, was not void under the 
 statute of frauds. 
 
 " Apply the rule contended "for b} r the defendant," said 
 the court in a well-considered opinion, " and a writing would 
 be indispensable to the validity of a contract by the owner 
 of a peat bed or sand bank, to deliver a load from it. Such 
 contracts are never regarded as carrying an interest in the 
 real estate from which the thing sold was to be taken by 
 the owner." 
 
 § 183. The contract, as stated in Ellison v. Brigham, 1 is 
 the same, except in name, as that in Smith v. Surman. 2 
 
 There the defendant agreed to cut into logs all the butter- 
 nut trees then standing on a certain part of his farm that 
 were suitable for logs, and deliver them, together with a 
 few logs then cut, to the plaintiffs at Burnett's saw-mill, 
 within a specified time, for which the plaintiffs agreed to 
 pay the defendant a stated price per cord, when measured 
 at the mill. 
 
 iSSVt., 64. See, also, Claflin v. 69. But see Putney v. Day, 25 Am. 
 Carpenter, 38 Am. Dec, 381, and Dec, 470; 6 N. H. R., 430. 
 note ; Marshall v. Ferguson, 23 Cal., 2 9 Barn. # Cress., 561. 
 
CHAP. VIII.] GROWING TREES AND TIMBER. 14:7 
 
 In order to perform the contract it was necessary for the 
 defendant to sever the bodies of the trees from the stump, 
 and cut them into sections suitable for delivery. It was not 
 in any sense contemplated that the property should be 
 manufactured or essentially changed in condition. The 
 labor bestowed upon the property was by the defendant, 
 and for himself. 
 
 The court, Pierpoint, J., said: "The fact that work and 
 labor is to be performed upon the subject-matter of the 
 contract, before it is to be delivered, in accordance with the 
 terms of the contract, does not necessarily take it out of 
 the statute. . . . The fact that labor is to be bestowed 
 upon the property to remove it from the place where it is 
 at the time of the contract, to the place of deliver} 1 -, is not 
 sufficient." He substantially held that it must be of such 
 a character as to bring the contract within the rule that ex- 
 cepts from the operation of the statute contracts for the 
 manufacture of property, or convert it substantially into a 
 contract for work and labor. The judgment for the de- 
 fendant was affirmed. 
 
 § 184. In Smith v. Surman, supra, where the bargain 
 was for timber, the trees from which it was to be cut then 
 standing on the vendor's land, Littledale, J., held that it 
 was a sale of goods within the statute of frauds. " Where 
 the contracting parties contemplate a sale of goods," said 
 the court, "although the subject-matter at the time of 
 making the contract does not exist in goods, but is to be 
 converted into that state by the seller bestowing work and 
 labor on his own raw material, that is a case within the 
 statute." 
 
 § 185. In the recent case of Smith v. Fisher, 1 the prin- 
 cipal ground of the plaintiff's contention was that the stat- 
 ute of frauds was no defense because there had been an 
 acceptance and receipt of the logs, the subject of the action. 
 The contract was for the sale of all the plaintiff's logs in 
 
 1 3 New Eng. Rep., 824 (Vt.), decided March, 1887. 
 
148 SALES. [chap. Till. 
 
 the mill-yard of a third person. It appeared that the de- 
 fendant agreed to take the logs at an agreed price per 
 thousand feet, with the right to reject one-fourth part of 
 the lumber cut from them as he might select. The plaintiff 
 had no duty in respect to the sawing, as the defendant him- 
 self agreed to pay for and direct as to that. The court, 
 Veazey, J., says : " The evidence plainly tended to show 
 an acceptance ; " and so, also, the verdict implied. "With- 
 out an express finding of an acceptance, said the court, the 
 facts would warrant a judgment for the plaintiffs. 
 
 In distinguishing the above case from Gorham v. Fisher, 1 
 the court said : " This bill of exceptions, as I interpret it, 
 shows a sale of logs as logs, not as boards, as the court con- 
 strued the report in the last named case. In the case at 
 bar the defendant took the logs as they were, without any 
 duty whatever on the part of the plaintiffs; while in the 
 other case there was a sale of logs, subject to delivery and 
 acceptance when the logs should be sawed into hoards by the 
 plaintiff." 
 
 Judgment for the plaintiff was affirmed. 
 
 § 186. Where an action was brought to recover the 
 price of two hundred and six logs, and the defense was that 
 the logs were delivered under a contract whereby the plaint- 
 iff's assignor agreed to deliver all the marketable pine saw- 
 logs which could be cut from the " Perry " lot, in Wilton, and 
 deliver them at defendant's saw-mill at the price of $2 per 
 log, there to be measured and counted, which the defend- 
 ant agreed to accept and pay for; and it appearing that the 
 plaintiff's assignor cut a large number of logs from the said 
 lot, in addition to the two hundred and six, which he re- 
 fused to deliver to the defendant, by means of which the 
 defendant sustained damage; the court adjudged, .first, that 
 it was not a contract for the sale of standing timber; and 
 second, that it was not essential to its validity that it should 
 be in writing ; and, therefore, the defense interposed could 
 be established under it. 
 
 i30Vt., 438. 
 
CHAP. VIII.] GROWING TKEES AND TIMBER. 149 
 
 The judgment of the court below was reversed and a new 
 trial granted. 1 
 
 § 187. In Stephens v. Santee 2 the plaintiff claimed title 
 to certain railroad ties purchased from one Allison, who 
 had bid them in at a sheriff's sale on an execution against 
 the property of one Daniels, who was the alleged owner at 
 the time. 
 
 The referee found that Daniels owned or was in posses- 
 sion of a piece of land, upon which were growing oak and 
 hemlock timber, suitable for railroad ties, and that he en- 
 tered into an oral agreement with the defendant to cut and 
 deliver one thousand hemlock ties at twelve cents apiece, 
 to be paid for as the work progressed, and to deliver them 
 on the side of the railroad track, in condition for loading 
 on the cars. 
 
 Daniels cut and hauled out upon the lands of Crosby tim- 
 ber for about eight hundred ties, previous to February, 
 1862; the trees were not cut up into ties, but were of differ- 
 ent lengths, nine-tenths of them being more than one tie in 
 length. 
 
 They were in this condition until February 11, 1862, 
 when they were cut up and piled upon the side of the rail- 
 road track by Daniels. 
 
 A judgment, wherein Allison was plaintiff, and Daniels 
 defendant, was docketed in Steuben county for $183.50. 
 Execution thereon was issued to the sheriff, who levied upon 
 the said ties, and they were sold to Allison, who, before the 
 commencement of this action, sold his interest in them to 
 this plaintiff. The ties were on Crosby's land when the levy 
 was made. 
 
 The referee decided that the timber was transferred to 
 the defendant and became his property as spon as it was 
 severed from the stump, and this was before February 8, 
 1862. He also found that the judgment against Daniels 
 was void, as well as the pui chase by the appellant ; that the 
 plaintiff was not entitled to recover. The plaintiff excepted 
 and appealed. 
 
 i Boyce v. "Washburn, 4 Hun, 792. 2 51 Barb. (N. Y.), 533. 
 
150 SALES. [CHAP. VIII. 
 
 Johnson, J., held, as found by the referee, that the con- 
 tract was not within the statute of frauds, but belonged to 
 that other class of contracts where the vendor agrees to 
 furnish materials, and manufacture for and deliver to the 
 vendee, at a future day. 
 
 The true criterion, saj^s the court, in all such cases is, 
 whether the work and labor required in order to prepare 
 the subject-matter of the contract for delivery is to be done 
 for the vendor himself, or for the vendee. If for the latter 
 it is simply a case of hiring, and not within the statute. 1 
 
 Here the labor was manifestly for the respondent, upon 
 his employment. The verbal delivery or turning out was of 
 no consequence. But by the agreement the timber was to 
 belong to the respondent the moment it was severed from 
 the stump, and the vendor was to work it up into ties for 
 the vendee, as his employer. 
 
 Clearly the timber became the property of the vendee, as 
 soon as it was severed from the stump. 
 
 The judgment was affirmed at the Monroe general term. 
 
 § 188. There may be found some cases in the books de- 
 cided upon about the following facts: A., by a contract in 
 writing, sells to B. certain trees standing on his land, with 
 the right in B., within a specified time, to cut and carry 
 away any part of them ; and within the stated time B. does 
 cut and carry away some of them, and then by a parol con- 
 tract sells the remaining standing trees to A. The question 
 in such a case is whether a memorandum in writing is neces- 
 sary under the statute of frauds. 
 
 In Smith v. Bryan, 2 upon a similar state of facts, the 
 plaintiff contended that inasmuch as the defendant was 
 owner and in possession of the land on which the trees 
 were growing, the sale, eo instanti, by force of law, gave 
 possession of the trees to the defendant. 
 
 The contract was held to be governed by the statute of 
 frauds. 
 
 The court, Le Grand, C. J., says: "It was not physically 
 
 i Parker v. Schenck, 28 Barb., 38 ; 25 Maryland, 141 ; 59 Am. Dec, 
 Bronson v. Wiman, 4 Selden, 183. 105. 
 
CHAP. VIII.] GROWING TKEES AND TIMBEK. 151 
 
 possible for the plaintiff to give him a more perfect posses- 
 sion, unless he had severed the. trees from the soil, which, 
 by the terms of the contract, he was not bound to do, and 
 which, in all probability, would have defeated the motive of 
 the defendant in making the repurchase, it being most 
 likely that he was induced to engage in the transaction by 
 a desire to have the trees remain standing on his land." 
 
 The judgment was reversed and procedendo awarded. 
 
 The statute of frauds of Maryland is the same as the stat- 
 ute, 29 Car. 2. 
 
 § 189. In Clark v. Nichols, 1 the defendant agreed to de- 
 liver to the plaintiff fifteen thousand feet of ash bending- 
 stuff, for the price of $34 per thousand feet, and fifteen 
 thousand feet of ash plank, for the price of $25 per thousand 
 feet, before a certain date. 
 
 The answer interposed the statute of frauds. The plaint- 
 iff below testified to this contract, and also that the bend- 
 ing-stuff was the butts of trees sawed so as to render them 
 suitable to be manufactured into wagon shafts, and that 
 " the defendant was to saw all logs not suitable for bending- 
 stuff into plank of various dimensions, under the direction 
 of the plaintiff." 
 
 The contract was held to be within the statute of frauds. 
 
 A verdict was given for the defendant. On appeal Chap- 
 man, C. J., said: "As the contract is stated in the bill of 
 exceptions, we think it was a contract to sell and deliver 
 the bending-stuff and plank, and not a contract for labor in 
 manufacturing the articles." 2 
 
 1 107 Mass., 547. specified price, it was held to be a 
 2 It was not, therefore, like tbe contract of sale of goods. In Stan- 
 cases of Mixer v. Howarth, 21 Pick. , sell v. Leavitt, 51 Mich. , 537 (44 id. , 
 201, and Spencer «. Cone, 1 Met., 424: 48 id., 225), it is held that a 
 283'; but like Gardner v. Joy, 9 contract for personalty is not viti- 
 Met, 177 ; Lamb v. Crafts, 12 Met., ated for want of a compliance with 
 353. and Waterman v. Meigs, 4 the statute of frauds relating to 
 Cush., 497, where a quantity of realty, merely because the two are 
 planks for ship building was to be written on one paper, 
 delivered at a future time, at a 
 
OHAPTEK IX. 
 
 OF CONTRACTS FOB GROWING TREES— WHERE THE VENDEE 
 IS TO SEVER THEM. 
 
 § 190. General observations on the subject. 
 
 191. Test in determining whether standing trees are personalty. 
 
 192. Where vendee is to sever the trees ; case of Green v. Armstrong. 
 
 193. Example of contract for lumber within the statute of frauds ; 
 
 Wetmore v. Neuberger. 
 
 194. Example where vendee is to enter upon the land and cut timber. 
 
 195. Contract for sale of standing trees must be in writing. 
 
 196. Unsealed contract for the sale of standing timber in perpetuity, 
 
 valid ; Warren v. Leland. 
 
 197. Damages for preventing] the removal of timber by vendor can- 
 
 not be recovered. 
 
 198. After severance of trees by the vendee they vest in him. 
 
 § 190. It has been shown in the preceding chapter that 
 by the well-considered decisions, where the owner of wood- 
 land contracts to cut and deliver the wood in a changed 
 condition, — into cord-wood, for instance, — such a contract is 
 not affected oy the statute of frauds. 
 
 It seems to be held by many cases, on the other hand, 
 that if the contract be for the sale of trees in their standing 1 
 condition, rooted in the soil, with the right in the vendee to 
 enter upon the land and cut and carry away the trees, at 
 any future time, whether fixed or indefinite, it is a sale of 
 an interest in land, and the contract must be in writing in 
 order to be binding. 
 
 This rule has not always been regarded. In fact such 
 contracts have been construed as not intended to convey an 
 interest in land. In such cases, it is somewhat dependent 
 upon the particular construction the terms and formalities 
 used in the contract are susceptible of. 
 
 § 191. Another distinction is made in the decisions, and 
 that is, between a contract for the sale of growing trees 
 
CHAP. IX.J CONTRACTS FOE GROWING TEEES. 153 
 
 where there is to be an immediate severance and delivery, 
 and where the trees are to remain standing and rooted in 
 the soil for an indefinite period. The former contract may 
 be by parol, the latter must be in writing to be binding 
 under the statute. 1 Thus, in Marshall v. Green, 2 it was said 
 by Lord Coleridge, C. J., that, apart from any deoisions on 
 the subject, and as a matter of common sense, it would seem 
 obvious that a sale of twenty-two trees to be taken away 
 immediately was not a sale of an interest in land, but merely 
 of so much timber. Here the trees were to be cut " as soon 
 as possible." Grove, J., in the same case, thought the test 
 would be whether the parties really looked to the trees deriv- 
 ing oenefit from the land, or merely intended that the land 
 should oe in the nature of a warehouse for the trees during 
 that period. 
 
 § 192. A case entitled to much weight is that of Green 
 v. Armstrong. 3 There, the defendant sold twenty-two bass- 
 wood trees standing on his land, to the plaintiff, at the rate 
 of one shilling and six pence per saw-log, to be paid for 
 when cut and carried away, the plaintiff being at liberty to 
 cut and take them away at any time. After a part bf the 
 trees had been cut, taken away and paid for, the defendant 
 forbade the plaintiff to take away any more. All except 
 two of the trees in question were selected and marked by 
 the parties. At the trial, judgment was rendered for the 
 plaintiff ; it was reversed by the court of common pleas, on 
 certiorari, on the ground that the contract was for the sale 
 of an interest in land, and not being in writing was void 
 under the statute of frauds. 
 
 i Parsons v. "Woodward, 2 Zab. Barnard, 5 Barb., 372, where the 
 R., 196; Parker v. Staniland, 11 case of Green V.Armstrong is de- 
 East, 362; Chitty on Cont., 11th clared by Gridley, J., to be the law 
 Am. ed., 415, 416 and note. of the land; Pitkin v. Noyes, 48 
 ilCP. Div., 35, 40. N. H., 294; Crosby v. Wadsworth, 
 3 1 Denio, 552 (1845); Bank of 6 East, 602; Olmstead v. Niles, 7 
 Lansingburgh v. Crary, 1 Barb., N. H., 522; Jones v. Flint, 10 Adol. 
 542 (1847); Lawrence v. Smith, 27 & El., 753. 
 How. Pr., 327. See Pierrepont v. 
 
154 SALES. [chap. IX. 
 
 Beardsley, J., in the above case, gives a very clear exposi- 
 tion of the law as to the distinctions to be drawn between 
 personalty and realty in a sale of anything attached to the 
 soil. 
 
 § 193. In Wetmore v. Neuberger, 1 the action was by 
 JSTeuberger as indorsee of a promissory note given by Wet- 
 more & Co. to one Pattison or order for $250, August 26, 
 1878. 
 
 The "Wetmores pleaded the general issue with notice of 
 set-off. The justice found in favor of Neuberger. 
 
 The Wetmores appealed. 
 
 •Pattison had transferred the note to Eeuberger after 
 maturity. The giving of the note grew out of a lumbering 
 transaction between Wetmore & Co. and Pattison. There 
 was an agreement in writing dated May IT, 1878, whereby 
 Pattison agreed to get out and deliver to Wetmore & Co., 
 at Marquette, in such booms as should be furnished, Nor- 
 way logs enough and of specified sizes and qualities, — 
 " suitable to be accepted by the parties contracting with said 
 Wetmore & Co.," and to deliver the same by September 1, 
 1878. " Pattison agreed to pay " $5 per thousand, board 
 measure, sealed in the boom at their mill," and to cut and 
 deliver to the Wetmores " white pine logs up to two hun- 
 dred thousand, board measure, of good sound logs, not 
 culled out for board timber, but taken as the timber will 
 cut, taking all good sound trees, for which W. & Co. agreed 
 to pay $4.50," etc. 
 
 Logs over twenty-four feet were to be scaled in two 
 lengths ; " final settlement to be upon the delivery of all 
 such logs." 
 
 Pattison cut and delivered to the Wetmores a great 
 quantity of logs, and they in return tnade payments and ad- 
 vances, the note in suit being given to be applied upon the 
 contract. 
 
 It was claimed by the Wetmores that, at the time of the 
 
 144 Mich., 362. 
 
CHAP. IX.J CONTRACTS FOR GROWING TREES. 155 
 
 transfer of the note to Pattison, their payments were in ex- 
 cess of the entire demands in favor of Pattison, beyond the 
 sum called for by the note, and that this was a lawful set-off, 
 sufficient to extinguish the note, a balance actually existing 
 in favor of the Wetmores of over $400. 
 
 The plaintiff, in the court below, averred that the con- 
 tract quantity of logs was not furnished, and that the agree- 
 ment was broken by the "Wetmores. It was part of their 
 contract with Pattison that he should not be bound to pay 
 above $1 per thousand feet stumpage on any land owned 
 by Lac La Belle Company. 
 
 On June 4th, following, they made a purchase of the 
 stumpage on certain land, which, according to the indica- 
 tions in the case, was Lac La Belle Company's land, and 
 they claim to have paid $1,000 for it. In their account 
 they charged Pattison, "August 3. Paid Lac La Belle 
 Company, stumpage as per verbal agreement with Pattison 
 about May 12, 1878, $1,000." The court said: " There was 
 no writing between Pattison and the Wetmores in regard 
 to their buying for him, or on his account, this body of 
 stumpage for $1,000, and the written purchase actually 
 made was in their own name and apparently on their own 
 account. Their claim seems to be, in reference to it, that 
 subsequent to their written agreement with Pattison of 
 May 17, it was orally agreed between them that they should 
 buy this tract of stumpage at $1,000 and pay therefor, and 
 that he would take it in their business arrangements and pay 
 them the $1,000 so that they should be exposed to no risk, 
 and that they made the purchase on that understanding 
 and debited him with the expense in their account. 
 
 " Assuming this explanation to be true, the transaction was 
 within the statute of frauds, and the objection raised on 
 that theory was well taken. 
 
 " The scheme contemplated that the "Wetmores should 
 provide the purchase money in advance, and in virtue of a 
 power from Pattison expend it in buying an interest in land 
 
156 SALES. [chap. IX. 
 
 in his favor. Such an arrangement is destitute of force un- 
 less manifested by writing. 1 
 
 " The contract was entire, and the stipulation for the 
 Wetmores to advance the money cannot be separated from 
 the rest." 
 
 Judgment was reversed. 
 
 § 194. In Slocum v. Seymour. 2 the plaintiff conveyed 
 to the defendant, by an instrument in writing, all the wood 
 and timber upon a certain tract of land, with the right in 
 the vendee to cut and remove the same; and the court be- 
 low charged the jury that it was a contract for the sale of 
 personal property. The appellate court held this to be error. 
 
 Bidle, J., in conceding a great diversity in the cases, 
 whether a sale of standing trees is a chattel interest, said : 
 " In no sense can trees, the natural and permanent growth 
 of the soil, be regarded as partaking of the character of em- 
 blements, or fructus indivstriales, but are a part of the inher- 
 itance, and can only become personalty by actual severance, 
 or by a severance in contemplation of law, as the effect of a 
 proper instrument in writing." 
 
 The judgment was reversed. 
 
 § 195. So, also, in Daniels v. Bailey, 3 where the com- 
 plaint, before it was amended, was for the consideration of 
 a sale of the respondent's interest in the standing timber 
 upon certain lands, and as amended, after verdict, it was 
 for the consideration of a sale of the respondent's inter- 
 est in a contract of sale of the standing timber. 
 
 1 Comp. L., sec. 4693; Russell v. in 1 Lord Raymond, 182; Buller's 
 Myers, 32 Mich., 522; Colgreve v. Nisi Prius, 282. But see Scovell 
 Solomon, 34 Mich., 494; Hille- v. Boxall, 1 Younge & Jervis, 
 brands v. Nebbelink, 40 Mich., 646. 395, where Hullock, B., regards 
 
 2 36 N. J. (7 Vroom), 138 ; O'Don- Lord Raymond's opinion as mere 
 nell v. Brehen, 36 id., 257. See, dictum and not as an authority, 
 also, McGregor v. Brown, 10 N, Y., See, also, Teal v. Auty, 2 B. & B., 
 117; Putney v. Day, 6 N. H., 430. 99, to the same effect, as to thepur- 
 This is also true of the English chase of growing poles. 
 
 cases, although somewhat conflict- 3 43 Wis., 566; Warner v. Trow, 
 ing. Tyler v. Bennett, 5 A. & E., 36 id., 195. 
 377. An adverse rule may be found 
 
CHAP. IX.] CONTRACTS FOE GEOWING TEEES. 157 
 
 The court, Kyan, 0. J., says : " Whether of the one or of 
 the other, the sale proved was by parol, wholly unexecuted ; 
 was equally the sale of an interest in land, and void under 
 the statute of frauds." 
 
 The judgment for the plaintiff was reversed and the 
 cause remanded to the court below for further proceedings 
 according to law. 
 
 § 196. The decision in "Warren v. Leland 1 is a clear 
 exposition of the law and also of the distinctions to be 
 borne in mind in determining whether a sale of growing 
 trees is within the statute of frauds. This was an action of 
 replevin in the cepit for three hundred and fourteen white 
 pine saw-logs by measure. By a written contract, unsealed, 
 dated December 18, 1833, signed by Stevenson and Farlin, 
 Stevenson agreed to sell to Farlin for $800, to be paid in 
 yearly payments of $200 each, the pine timber on certain 
 lots in the "Schroon tract;" Farlin to give his note, pay- 
 able at the Saratoga County Bank, indorsed by Miles 
 Beach, on or before the 1st of February, 1834. 
 
 Paige, J., says : " I have come to the conclusion that the 
 contract of the 18th of December, 1833, although unsealed, 
 was a valid conveyance in perpetuity of the pine timber 
 standing on the lots mentioned therein at the date of the 
 contract." He held that the term " conveyance," used in the 
 Eevised Statutes, 2 does not necessarily import a deed un- 
 der seal. So long as they are annexed to the land and are 
 neither actually nor in contemplation of law severed there- 
 from, they cannot be sold or transferred by parol. He re- 
 iterates his views as expressed in the Bank of Lansingburgh 
 v. Crary. 3 Hence, it may be said that growing trees, when 
 they are the subject of an ownership distinct from the 
 ownership of the soil, are no longer deemed as annexed to 
 the realty, but are regarded as chattels personal merely, 
 like growing crops of grain or vegetables, which are the 
 annual produce of labor and of the cultivation of the earth. 
 
 1 2 Barb., 613. » 1 Barb., 543. 
 
 2 Vol. 2, p. 137, § 6 and tit. 1. 
 
158 SALES. [CHAP. IX. 
 
 " But while growing trees are parcel of the realty," says 
 the learned judge, "do they so much partake of the char- 
 acter of the latter as to require a writing under seal from 
 the owner of the fee to convey an estate in perpetuity iu 
 them, distinct from the ownership of the soil? They are 
 parcel of the realty. A conveyance of them is the convey- 
 ance of an interest in lands. They are therefore within the 
 statute of frauds, and can only be sold or conveyed by a 
 conveyance in writing. But is a conveyance of growing 
 trees by the owner of the fee of the land, to a third per- 
 son, the conveyance of a freehold estate? Simultaneous 
 with the execution and delivery of the conveyance the 
 trees are severed, in law, from the earth and become chat- 
 tels personal, and the interest which passes to the grantee 
 is not a freehold estate, but an interest in perpetuity in per- 
 sonal estate, which may be conveyed by a writing without 
 seal, and even by parol. Can it then be said that such a 
 conveyance is the conveyance of a freehold estate? I think 
 not. For the reason that a freehold estate does not pass by 
 the conveyance, but merely the title to a chattel." 
 
 The above observations by the court are to be deemed 
 applicable to a conveyance of the growing trees standing 
 on the land at the time of the conveyance, and not to a 
 conveyance of an interest in any future trees which may 
 grow on the land, which might embrace an exclusive inter- 
 est in the soil as far as may be necessary for the support 
 and nourishment of the trees ; and these observations ou^ht, 
 perhaps, also to be qualified by an application of them to a 
 conveyance of growing trees in prospect of their separation 
 from the soil within a reasonable time. 
 
 § 197. Lawrence v. Smith J was an action to recover a 
 balance due on a note given by the defendant for certain 
 oak timber trees standing on the plaintiff's farm. The de- 
 fense was for $100 damages, by reason of the plaintiff hav- 
 ing stopped the defendant from carrying away the timber, 
 the plaintiff not being satisfied as to the responsibility 
 
 1 27 How. Pr„ 327. 
 
CHAP. IX.] CONTRACTS FOE GROWING TEEES. 159 
 
 of the indorser on the note. The court below charged that 
 the defendants could not set off the damages sustained, as 
 the agreement was void under the statute of frauds. 
 
 The defendant appealed. 
 
 Daniels, J., at general term, sustaining the judgment, 
 said : " The contract, for the breach of which the defend- 
 ant claimed to be entitled to damages, was for the sale of 
 standing trees, and not being in writing was void. 
 
 " The plaintiff incurred no obligation in law by which the 
 defendant Smith could insist upon the agreement against 
 his refusal to observe it. 
 
 " Even if it be conceded that the defendant could have 
 enforced a specific performance of the agreement in equity, 
 that will in no way aid the claim he now makes for dam- 
 ages; for courts of equity do not remunerate parties by 
 damages arising out of the breach of agreements which 
 are void under the statute of frauds. When these contracts 
 are enforced specifically in equity, it is, in part, owing to 
 the circumstance that no recovery in damages for the 
 breach of them can be had at law. There was, then, no 
 legal or equitable obligation resting on the plaintiff to pay 
 the damages caused by his interruption of the work of cut- 
 ting and removing the trees. The most that can be said is, 
 that he was under a moral obligation to do so. 
 
 " The promise predicated on that, after the additional in- 
 dorser was given on the note, to allow the defendant $100 
 by way of damages for such interruption, was without con- 
 sideration. It did not, therefore, entitle the defendant to a 
 recovery of that sum upon the trial of this action." 
 
 In order to render the promise in the above case binding, 
 the obligation forming its consideration should have been 
 one that at some time could have been enforced in law or 
 equity against the plaintiff. There was no such considera- 
 tion in this case. 1 
 
 iSee, also, 1 Parsons on Con- "Wend., 99; Cameron v. Fowler, 5 
 tracts, 358, 361 ; Ehle v. Judson, 24 Hill, 308. 
 
160 SALES. [CHAP. IX. 
 
 § 198. It was held in a well considered case in Vermont, 
 that, if the contract is for a valuable consideration, and has 
 been executed by the vendee, by his actually severing the 
 trees from the freehold under the contract, the property in 
 the trees would doubtless, when cut, vest in the vendee, and 
 become his. 1 
 
 i Buck v. PickweU, 27 Vt., 157. • 
 
CHAPTEE X. 
 
 CONCERNING LICENSE IN THE VENDEE TO ENTER UPON 
 LAND AND REMOVE TIMBER. 
 
 § 199. Of the general rights of the vendee to enter upon land. 
 
 200. Definition of license ; may be granted without deed or writing. 
 
 201. Construction of license ; it passes no interest in land; the, case 
 
 of Whitmarsh v. Walker. 
 
 202. Concerning nursery trees as chattels. 
 
 203. Severance of anything attached to the freehold under a special 
 
 license ; Smith v. Bryan. 
 204 Where timber is to be cut immediately, license implied. 
 
 205. After severance timber cannot constitute an interest in land. 
 
 206. The presumption arises that the licensee is acting under the 
 
 permission of the licensor; Spalding v. Archibald. 
 
 207. Example where the vendee was to sever the trees ; Owens t>, 
 
 Lewis. 
 
 208. License is revoked ipso facto by the death of licensor, or by a 
 
 conveyance of the premises. 
 
 209. After a license is executed the licensee has a complete defense 
 
 against an action by the licensor. 
 
 210. A contract giving a party the right to clear the trees in consid- 
 
 eration of his sowing down the land is valid; McGregor v. 
 Brown. 
 
 211. Distinction between a license and an interest in land ; Johnson 
 
 v. Wilkinson. 
 
 212. Where the vendee is to enter upon land and sever trees under a 
 
 license to do so, it is not a contract for interest in land, but of 
 personalty; Banton v. Shorey. 
 
 § 199. It has been stated as a ruling principle, that where 
 chattels are sold, which at the time are upon the land of the 
 vendor, a license in the vendee to enter upon the land for 
 the purpose of receiving the property is implied. 
 
 The proposition, however, that the vendor cannot deprive 
 the vendee of his property, nor put him to an action for its 
 recovery by withdrawing such implied permission, said the 
 11 
 
162 SALES. [CHAP. X. 
 
 court, in effect, in McLeod v. Jones, 1 does not apply to a 
 case where a severance from the realty is necessary to con- 
 vert the subject of the sale into personalty, and the revoca- 
 tion is made before such severance. 
 
 The court said that a right or license to enter upon land 
 results, or may be inferred, from the contracts of the parties 
 in relation to the personalty. To be efficacious for any pur- 
 pose it is necessary that the license be granted by the act- 
 ual owner, nor can it in any case extend beyond the interest 
 he has in the premises. 2 
 
 § 200. In an early Massachusetts case, Chief Justice Par- 
 sons has given, in a few words, a clear and satisfactory defi- 
 nition of a license. 
 
 He says: "A license is technically an authority to do 
 some one act, or series of acts, on the land of another with- 
 out passing any estate in the land, such as a license to hunt 
 in another's land, or to cut down a certain number of trees. 
 These are held to be revocable while executing, unless a 
 definite time is fixed, but irrevocable when executed. 
 
 " Such licenses to do a particular act, but passing no estate, 
 may be pleaded without deed." 3 
 
 But it is held otherwise, where the license amounts to the 
 granting of an estate for ever so short a time. 
 
 And a beneficial license, to be exercised on land, may be 
 granted without deed and without writing; and if granted 
 upon a valuable consideration, and acted upon, cannot be 
 revoked, say the English cases. 4 
 
 § 201. Whitmarsh v. "Walker 5 was an action upon an 
 agreement to deliver certain mulberry trees on the ground 
 where they were growing. The plaintiff paid $10 down 
 
 1105 Mass., 403; Wood v. Man- « Taylor v. Waters, 7 Taunt., 374. 
 
 ley, 11 Ad. & E., 34. See, also, Mumford v. Whiting, 15 
 
 2 Richardson v. Richardson, 9 Wend.. 380, where Savage, C. J., 
 
 Gray (Mass.), 213; Petty v.Evans, 2 elaborately discusses the subject 
 
 Brownl., 40. and reviews the several authori- 
 
 3 Cook v. Stearns, 11 Mass., 533. ties. 
 
 To the same effect is the decision in 542 Mass., 313. 
 Johnson v. Wilkinson, 139 Mass., 3. 
 
CHAP. X.J LICENSE TO ENTER UPON LAND. 168 
 
 and agreed to pay the rest on the delivery of the trees. 
 Defendant refused to deliver them. The trees, at the time 
 of the contract, were rooted in the ground in the defendant's 
 close, and were raised for the purpose of sale and trans- 
 plantation. 
 
 The defendant contended that the agreement was void by 
 the statute of frauds, on the ground that the trees were 
 growing and rooted in the soil, and appertained to the realty 
 at the time of the sale. 
 
 On the other hand, it was contended that the trees con- 
 tracted for were raised for sale and transplantation, and like 
 fruit trees, shrubs and plants rooted in the soil of a nursery 
 garden, were personal chattels. 
 
 "According to the true construction of the contract as we 
 understand it," said the court, " the defendant undertook to 
 sell the trees at a stipulated price, to sever them from the 
 soil, or.to permit the plaintiff to sever them, and to deliver 
 them to him on demand ; he at the same time paying the 
 defendant the residue of the price. And it is immaterial 
 whether the severance was to be by the plaintiff or the de- 
 fendant. For a license for the plaintiff to enter and remove 
 the trees would pass no interest in the land, and would, with- 
 out writing, he valid, notwithstanding the statute of frauds. 
 
 " "We think it therefore clear," said the court, " that, giv- 
 ing to the contract the construction already stated, the 
 plaintiff is entitled to recover. If, for a valuable consider- 
 ation, the defendant contracted to sell the trees and to 
 deliver them at a future time, he was bound to sever them 
 from the soil himself, or to permit the plaintiff to do it, and 
 if he refused to comply with his agreement, he is responsi- 
 ble in damages." 
 
 § 202. In Miller v. Baker, 1 the question also arose as to 
 whether fruit trees, shrubs and plants, rooted in the soil of 
 the nursery garden, can properly be denominated chattels. 
 This was an action of trespass against the sheriff for taking 
 
 'U2 Mass., 27; Nuttleton v. Sites, 49 id., 34. 
 
164 SALES. [chap. X. 
 
 nursery trees, shrubs, etc., and converting them to his own 
 use. 
 
 The decisions generally give a liberal construction in 
 favor of a tenant's rights to remove property placed by him 
 upon the land. In this case the plaintiff claimed the prop- 
 erty under an instrument executed by one Senior. The 
 land in which said trees and shrubs were growing had been 
 demised to Senior to be occupied for a nursery garden. The 
 court held that the products of this garden, as regards the 
 interest of Senior, may well be considered to be articles of 
 trade and sale. 
 
 § 203. The contention of the plaintiff, in Smith v. Bryan, 1 
 under the contract as proved, was in accordance with the 
 cases generally. 
 
 The following principles may be reasonably declared from 
 the authorities, both in England and in this country : If the 
 timber, or other produce of the land, or any other thing an- 
 nexed to the freehold, is specifically sold, whether it is to be 
 severed from the soil by the vendor, or to be taken by the 
 vendee, under a special license to enter for that purpose, it 
 is still, in the contemplation of the parties, evidently and 
 substantially a sale of goods only. The court further said, 
 that "the contract by which originally the defendant in this 
 action sold to the plaintiff the trees was one for the sale of 
 goods; and as this was the character of the thing purchased 
 by the plaintiff, that character was retained up to the time 
 when the plaintiff resold to the defendant." Assuming the 
 premises of the learned judge to be true, that the trees 
 sold under the contract were substantially goods, the de- 
 ductions reached seem to be sound, as adjudged by the 
 English cases, which evidently is the guide of the court in 
 that case. 
 
 § 201. If, under a parol contract, certain timber is to re- 
 main on the land during the pleasure of the buyer, or for an 
 indefinite period, it might affect injuriously subsequent pur- 
 
 >5 Maryland, 141. See, also, 1 Brigham, 38 Vt., 64; Marshall v, 
 Greenleaf on Ev., § 271 ; Ellison v. Green, 1 Q. B. D., 35. 
 
CHAP. X.] LICENSE TO ENTEK UPON LAND. 165 
 
 chasers of the land. On the other hand, if the timber is to 
 be cut and carried away immediately, or within a reasonable 
 time, it is not liable to the same objection; nor would tres- 
 pass lie by the original owner for entering and cutting under 
 such, a contract, as it would at least amount to a license, which 
 need not be in writing} 
 
 § 205. In Erskine v. Plummer, 2 where the plaintiff en- 
 tered under the contract and by permission of the owner, 
 cut the timber, carried it away and paid the full considera- 
 tion demanded, it was held that the actual receipt of the 
 price constituted a sale of the timber after it was severed, if 
 it was not consummated before. After it was severed there 
 could be no pretense that it constituted an interest in land, 
 and a sale thus made is entirely relieved from any objection 
 arising under the statute of frauds. 
 
 In Greeley v. Stilson, 3 it was held that a parol license to 
 cat timber for a fixed price for stumpage is not invalid, and 
 is not covered by the statute of frauds, either as a sale of an 
 interest in land or as a sale of chattels. 
 
 § 206. Thus, Spalding v. Archibald 4 is a case where it 
 was held that a license to cut the timber follows a verbal 
 sale of it, and will protect the purchaser from anything done 
 under it prior to its revocation. Such a right continues 
 until recalled ; and as trees and timber become severed, the 
 contract of sale attaches to them as chattels, and they may 
 be removed as property of the vendee. 5 
 
 Cooley, J., said: "It was suggested on the part of the 
 plaintiff, that, to give the transaction this effect, it should be 
 shown that he had actual knowledge that the cutting was 
 proceeding; but this was not important; he was bound to 
 assume his consent would be acted upon." 
 
 1 Green v. Armstrong, 1 Denio, 556. 4 52 Mich. , 365 (1883). 
 
 2 7 Maine, 447 (1831); Cook v. 5 Greeley v. Stilson, 27 Mich., 157 ; 
 Stearns, 11 Mass., 533. Haskell v. Ayers, 35 id., 93; Claflin 
 
 3 27 Mich., 153; Lee v. McLeod, v. Carpenter, 4 Met., 580; Pierre- 
 12 Nev., 280; Terrell v. Frazier, 79 pont v. Barnard, 6 N. Y., 279. 
 Ind., 473. 
 
166 SALES. [CHAP. X. 
 
 The above case is in accord with the current line of de- 
 cisions, and well illustrates them. 
 
 In the course of an able judgment, Mr. Justice Cooley 
 said that it " did not follow, because a sale is void under the 
 statute of frauds, the purchaser can derive no title under it. 
 Such a sale is void only at the option of the parties con- 
 cerned, and if they elect to treat it as valid, it may become 
 effectual for all purposes. And commonly, even if not 
 wholly affirmed, it will operate as a license which will pro- 
 tect the purchaser against liability for anything done under 
 it prior to any act of revocation. 
 
 " A license very often assumes the form of a sale, and it 
 only fails to become a sale because of not being put in legal 
 form." 
 
 After reviewing the evidence, the court concluded that 
 the whole transaction was invalid from the first, and " that 
 either party might have refused to recognize or act upon it." 
 
 § 207. While in general, in Indiana, it is held that the 
 sale of standing trees is a sale of an interest in land, in 
 Owens v. Lewis 1 it was decided that a parol agreement for 
 the sale of growing trees, the trees to be severed and taken 
 from the land by the vendee, as in that case, will amount to 
 a license for the vendee to enter upon the vendor's land for 
 the purpose of making such severance; " and if such license 
 is not revoked before the trees are severed, the title to the 
 trees will vest in the vendee, and the license after severance 
 will become coupled with an interest and irrevocable, and 
 the vendee will have a perfect right to enter and remove the 
 trees thus severed." 
 
 The above exposition gives the law in a small compass 
 and is very satisfactory. 
 
 So, in an important Vermont case, it was clearly held 
 that when the owner of timber sold it and permitted the 
 purchaser to cut the poles (the subject of the contract), he 
 at the same time gave him authority and license to take 
 
 M6 Ind., 488; 15 Am. E., 295. and Lumber Company, 87 Ind., 
 See, also, Cool v. The Peters Box 536. 
 
CHAP. X.J LICENSE TO ENTEE UPON LAND. 167 
 
 them away. "When the purchaser, by such a permission, 
 has cut the poles they become his personal property, and he 
 thereby acquires a perfect right to enter upon the land and 
 take them away. Eor is such right confined to the person 
 of the purchaser, but they may be removed by his agent or 
 servant. 1 
 
 § 208. But it seems to be well settled by the cases, on the 
 other hand, that if a parol license be granted to do a given 
 act on the owner's land, such license is revoked ipso facto 
 by the death of the licensor, or the convej^ance of the prem- 
 ises by him, and nothing can save it from the operation of 
 this rule. 2 
 
 Lord Ellenborough once said that " a license is not a grant, 
 but may be recalled immediately." 3 
 
 § 209. There are several well considered cases, also, that 
 seem to hold, a*s stated in effect by Mr. "Wood, that a parol 
 license to enter upon the land of another for any purpose, 
 and that license-right has been wholly executed, affords a 
 complete defense to the licensee against an action for doing 
 such act, notwithstanding it was void under the statute of 
 frauds, " and if executed after the revocation would have 
 made the licensee a trespasser." 4 
 
 § 210. McGregor v. Brown 6 was an action for waste, al- 
 leged to have been committed by the defendant upon a 
 
 lYale v. Seely, 15 Vt., 221. In Abb. (N. Y.) App. Dec, 27; St. 
 this case Hebard, J., delivered an Vincent Orphan Asylum v. Troy, 76 
 able judgment, which will repay a N. Y. , 108 ; Wiseman v. Luck- 
 careful perusal. singer, 84 id., 31. 
 
 2 Carter v. Harlan, 6 Md., 20; * Houston v. Laffee, 46 N. H., 
 Eggleston v. N. Y., etc., Railroad 505; Pratt v. Ogden, 34 N. Y., 20; 
 Co., 35 Barb. (N. Y.), 162; Drake Arrington v. Larrabee, 10 Cush. 
 v. Wells, 11 Allen (Mass.), 141. (Mass.), 512; Wood on Frauds, 8. 
 
 3 Rex v. The Inhabitants of 5 10 N. Y, 115; 2 R. S., 334, sec. 
 Herndon-on-the-Hill, 4 M. & Sel., 1 ; Kingsley v. Holbrook, 45 N. H., 
 565. A'license to lay an aqueduct 313; Buck v, Pickwell, 27 Vt., 157; 
 across the land of the licensor may Yeakle v. Jacob, 38 Penn. St., 376; 
 be revoked, and may be cut off. Scovill v. Boxall, 1 Young & Jer. 
 See Owens v. Field, 12 Allen (Ex.), 396; Teal v. Auty, 2 Brod. & 
 (Mass.), 457; Babcock v. Utter, 1 Bing., 99. 
 
168 SALES. [CHAP. X. 
 
 farm occupied by him as tenant. The defendant had cut 
 and sold, for his own benefit, a quantity of trees growing 
 upon the premises. Some evidence was offered showing 
 that it was agreed that the defendant might clear the trees 
 if he would seed down the land that he cleared. This testi- 
 mony was objected to by the plaintiff ; the court overruled 
 the objection, and held that it was competent to give in 
 evidence a parol agreement mutually beneficial to the par- 
 ties, by which the wood was to be cut and the land seeded. 
 The plaintiff excepted and appealed. 
 
 In the court of appeals it was decided that the exception 
 was well taken. 
 
 Edwards, J., further said : " It is not pretended that all 
 the wood cut down was required for fences or repairs of 
 the buildings, or for any other purpose for which it might 
 be legally used by the tenant. Under these circumstances, 
 I think that the clearing of the wood-land was in itself an 
 act of waste, and whether it was so or not is a question of 
 law to be decided by the court." 
 
 Denio, J., as to a license, said : " The object of the qual- 
 ification respecting the evidence of a license is the same 
 with those provisions of the statute of frauds requiring cer- 
 tain transactions to be put' in writing, namely, to prevent 
 agreements from being set up by false or mistaken oral tes- 
 timony." 
 
 The distinction between a privilege or easement carrying 
 an interest in land, said Chancellor Kent, and requiring a 
 writing within the statute of frauds to support it, and a 
 license which may be by parol, is quite subtle, and it be- 
 comes difficult in some of the cases to discern a substantial 
 difference between them. 1 
 
 § 211. The case of Johnson v. Wilkinson 2 illustrates the 
 question as to what is to be deemed a license and what an 
 interest in land. There the defendant, who was the owner 
 of a hall, made an oral contract with the plaintiff by which" 
 
 13 Kent's Com., 452; Taylor v. 2 139 Mass., 3. 
 "Waters, 7 Taunt., 374. 
 
CHAP. X.J LICENSE TO ENTER UPON LAND. 16S> 
 
 he agreed to permit the plaintiff to use the hall for dancing' 
 purposes on the afternoons of four certain days, at a stipu- 
 lated price for each afternoon. 
 
 In the court below a verdict was directed for the defend- 
 ant upon the ground that the contract was within the stat- 
 ute of frauds, and was for the sale of an interest in land. 
 
 On the appeal the questions discussed were whether there 
 was a contract for the sale of an interest in land, or for a 
 license to use the hall. 
 
 A license, substantially said Morton, 0. J., is a permis- 
 sion or authority to enter the land and do certain acts, or 
 series of acts, the parties not intending to convey any in- 
 terest in the land. It is well settled that such a license 
 need not be in writing, under the statute of frauds. 
 
 Hence, a license to enter land and to cut timber or to 
 gather the growing crop is valid, though not in writing. 
 
 Judgment was given for the plaintiff for breach of con- 
 tract against the owner of the building. 
 
 So it has been held that where a person sows a crop on 
 the land of another, under a parol license, he is entitled to 
 the crop arising therefrom. 1 
 
 So an agreement for lodgings in a hotel creates merely a 
 license, and not an interest in land; 2 likewise an agreement 
 for a seat in a theater. 3 
 
 § 212. In Banton v. Shorey 4 the plaintiff claimed title to 
 certain timber as mortgagee of real estate from one Hatcil 
 Gott, dated November 10, 1881, but not recorded until Jan- 
 uary 12, 1883. 
 
 The defendants claimed the title Ihereto by virtue of the 
 following memorandum : 
 
 " Alton, September 24, 1882. 
 
 "This is to certify that Frank Porter, of Alton, has bought 
 
 1 Harris v. Frink, 49 N. Y., 24; SMcCreav. Marsh, 12 Gray, 211; 
 McLeod v. Jones, 105 Mass., 403; Burton i>. Scherpf, 1 Allen, 133. 
 Wood v. Manley, 11 A. & E., 34. * 77 Me., 48 (1885). 
 
 2 "White v. Maynard, 111 Mass., 
 250. 
 
170 SALES. [CHAP. X. 
 
 four hundred knees, more or less, of me, Hatcil Gott, on lot 
 No. 25, and has paid me in full, $70 (seventy dollars). 
 
 " Hatcil Gott. 
 
 " And this is to certify that I, Hatcil Gott, do defend the 
 above writing. Hatcil Gott." 
 
 The knees were severed from the soil, removed from the 
 land, and the stipulated price paid for them by the defend- 
 ants, before the plaintiffs' mortgage was recorded and be- 
 fore they had any notice of it. The defendants claimed as 
 purchasers without notice of an adverse interest in any one 
 till after the knees had been severed from the land and pay- 
 ment of the price stipulated. 1 
 
 The plaintiffs claimed that the defendants obtained no 
 title to the knees, inasmuch as the trees from which they 
 were taken were a part of the realty, and that their writing 
 was not such an instrument as would convey an interest in 
 real estate. The court assumes that it is settled by modern 
 decisions " that parol or simple contracts for the sale of 
 growing timber, to be cut and severed from the freehold 
 by the vendee, with reference to the statute of frauds, and 
 to give effect to them, have been construed as not intended 
 by the parties to convey any interest in land, and, there- 
 fore, not within the statute. They are held to he executory 
 contracts for the sale of chattels, as they may he afterward 
 severed from the real estate, with a license to enter on the land 
 for the purpose of removal? In this case the contract be- 
 came executed. It is true the defendants, under the execu- 
 tory contract for the sale of growing timber, entered upon 
 the land and severed therefrom and carried away the tim- 
 ber, paying the consideration named. Hence the title 
 thereto became vested in the defendants. 
 
 " As between the vendor, the party in whom the title of 
 
 1 Defendants invoked section 8 Parsons v. Smith, 5 Allen, 578 ; 
 of the Revised Statutes, oh. 73. Davis v. Emery, 61 Me., 141 ; Free- 
 
 2 White u. Foster, 102 Mass., 378; man v. Underwood, 66 Me., 233; 
 Claflin v. Carpenter, 4 Met., 583; Ellis v, Clark, 110 Mass., 391. 
 Poor v. Oakman, 104 Mass., 316 
 
CHAP. X.] LICENSE TO ENTER UPON LAND. 171 
 
 record appeared," says the court, " and the vendees of this 
 timber, the title thereto became vested in them when it was 
 severed from the soil; to be sura, as to so much as might re- 
 main uncut, the seller had the right, at any time before sever- 
 ance, to revoke the license to enter, sever and remove it, and 
 thereby prevent the vesting of the title to such as might re- 
 main uncut ; but as to this timber which had been cut or 
 severed from the soil, the contract had been executed, the 
 license irrevocable, and the purchaser's title thereto valid. 
 As to such they were more than mere licensees; they were pur- 
 chasers of property, with license incidental to an executed 
 contract." The court decided that the title to the knees was 
 in the defendants. 
 
CHAPTER XL 
 CONCERNING ICE AS GOODS. 
 
 § 213. Ice held to be a manufacture when prepared for consumers. 
 
 214. The same subject continued. 
 
 215. Are incorporated ice companies manufacturing corporations so 
 
 far as to avoid taxation; The People v. The Knickerbocker 
 Ice Company. 
 
 216. Ice uncut is deemed personalty; Higgins v. Kusterer. 
 
 § 213. Nice distinctions have been drawn in the cases in 
 determining what will constitute a manufacture of goods. 
 
 According to linguistic authorities a manufacture is the 
 process of making anything by art, or of reducing materials 
 into form fit for use either by hand or machinery. 
 
 By a recent important decision the garnering and prepa- 
 ration of ice, fit for consumers of the article, is held to be 
 a manufacture. The question, it must be admitted, falls 
 pretty near the line. 
 
 It is a natural product; its natural condition is not 
 changed. 
 
 " It is ice when it is taken from the river, and it is ice 
 when delivered to consumers. The form alone is changed. 
 It is reduced in size and delivered in quantities to suit the 
 convenience of the patrons of the company." Thus says 
 Champlin, J., in the Attorney General v. Belle Isle Ice 
 Company. 1 
 
 In the course of an able opinion he further says: "But 
 it is not necessary to constitute the commodity a manu- 
 factured article that a chemical change should be wrought 
 in the thing manufactured. Iron manufactured from iron- 
 ore remains iron. Cotton gathered from the boll, and, by 
 means of complicated machinery, manufactured, becomes 
 
 1 26 N. "W. Eeporter, 311, Michigan, S. C, January, 1886. 
 
CHAP. XI.] CONCERNING ICE AS GOODS. 1T3 
 
 tlie cotton of commerce. Lumber is manufactured from 
 logs or timber, simply by changing its form." 
 
 § 214. It has been held that grinding bones to produce 
 the bone-dust of commerce was manufacturing, within the 
 meaning of the revenue laws of the United States. 1 
 
 And the supreme court of the United States held that 
 timber split into staves, or into long pieces designed for 
 shovel handles, was "manufactured," and not covered by 
 the reciprocity treaty of 1854. 2 
 
 " Speaking for myself, however," says the learned justice 
 in the Michigan case, " I must say that if this were a pro- 
 ceeding under sections 8616 and 8647, to test the right of 
 the Belle Isle Ice Company to carry on the business set 
 forth in the replication, I should not consider that business 
 a manufacturing business within the meaning of the law, 
 for reasons which are set forth in the opinion of Mr. Jus- 
 tice Danforth in the case of People v. Knickerbocker Ice 
 Company, 3 and to my mind very satisfactory. 
 
 § 215. On the other hand, an incorporated ice company 
 has been held not to be a manufacturing corporation. 
 
 The People v. The Knickerbocker Ice Company 4 was an 
 action brought to recover state taxes, and for the penalty 
 prescribed for their non-payment. The answer set up that 
 the defendant " is a manufacturing corporation," etc., under 
 the laws of 1848, and the amendment passed in 1855. 5 The 
 business of the defendant was that of collecting ice from 
 
 iSchriefer v. Wood, 5 Blatohf. 146; Edgerton v. Huff, 26 Ind., 35. 
 
 R., 215. The owner of the fee may take ice 
 
 2 United States v. Hathaway, 4 from the canal if it does not inter- 
 Wall. R., 404, 408. fere with the rights of navigation. 
 
 3 99 N. Y. R, 181. As to whether The State v. Pottmeyer, 33 id., 
 there can be absolute property in 402 ; Storm v. Mauchaug, 13 Allen, 
 ice or water, the following cases 10; Paine v. Woods, 108 Mass., 173; 
 will be found interesting : In Mar- Myer v. Whitaker, 18 Alb. L. J., 
 shall v. Peters, 12 How. Pr., 218, a 128; Lorman v. Benson, 8 Mich., 
 right of injunction against cutting 32 ; Rendskopf v. De Ruyter, 39 
 ice, etc., was denied. Cummings Mich., 1. 
 
 v. Barrett, 10 Cush., 189; Mill «99N. Y., 181. 
 
 River Mfg. Co. v. Smith, 34 Conn., »See Laws of New York, 1855, 
 
 462; Ward v. The People, 6 Hill, ch. 301. 
 
174: SALES. [CHAP. XI. 
 
 the Hudson river and Rockland lake, storing, preserving 
 and preparing it for sale, etc. 
 
 The referee found that the defendant was not a manu- 
 facturing corporation carrying on manufacture. 
 
 The court, Danforth, J., in an able opinion, after saying 
 that the defendant's operations are in no way concerned 
 with the manufacture or sale of an artificial product, ob- 
 serves : " Its dealing is with ice as an existing article, not the 
 manufacture or production of ice by combination of ma- 
 terials, or the application of forces or otherwise. It col- 
 lects, stores and preserves that which natural causes created 
 and which other natural causes would destroy and waste. It 
 seeks only to hold these last in check. Similar operations 
 would equally apply to water, fruit, sand, gravel, coal and 
 other natural productions. . . . ]STo doubt ice may be manu- 
 factured, and frigorific effects produced by artificial means. 
 Corporations exist for the purpose and come literally within 
 our manufacturing laws. Their methods in no respect re- 
 semble those of the defendant." He further says, referring 
 to the act of 1855, " equality under that act is provided for, 
 but nothing more. Exemption from taxation is not given 
 by it. That subject is regulated by the statute under which 
 the action is brought, 1 and it is limited to corporations 
 which are in fact manufacturing corporations, and do carry 
 on manufacture. We think the defendant is of a different 
 character." All the judges concurring, the judgment ap- 
 pealed from was affirmed. 2 
 
 § 216. The case of Higgins v. Kusterer 3 presents the 
 question whether ice is personalty or whether it belongs to 
 
 i Laws of 1881, ch. 361, §2. v. Franklin Coal Co., 106 Mass., 
 
 2 See Nassau G-. L. Co. v. Brook- 131 ; Dudley v. Jamaica P. Aque- 
 
 lyn, 89 N. Y., 410; People v. New duct, 100 id., 183; Frazee v. Moffit, 
 
 York Floating Dry Dock Co. , 92 id. , 20 Blatchf . ,267. See, also, Schrief er 
 
 487. In general the term "man- v. Wood, 5 Blatchf., 215; 28 Alb. 
 
 ufacture" presupposes a raw ma- L. Jour., 366; Bailey v. Schell, 5 
 
 terial; application thereto of skill Blatchf., 195; Lawrence v. Allen, 
 
 and manipulation, and the pro- 7 How. (U. S.), 1785. 
 duction of a new distinct object 3 41 Micb., 322. 
 due to such application. See Byers 
 
CHAP. XI.J CONCERNING ICE AS GOODS. 175 
 
 the realty. There, certain ice was formed upon water which 
 had spread over a spot of low ground partly belonging to 
 one Coats; the land being dry in summer. After the ice 
 formed in February, 1878, Coats by a parol bargain sold all 
 the ice' in his part of the basin to the plaintiff. The parties 
 at the time stood by in view of the ice, and the quantity 
 sold was pointed out and the price paid. The ice at the 
 time was uncut. About two weeks thereafter, John Loder, 
 knowing that Higgins, the plaintiff, had purchased and 
 claimed the ice, and having been warned thereof by Coats, 
 offered Coats $5 for the ice, which Coats accepted, and 
 Loder cut it and sold it to Kusterer, who had made a pre- 
 vious verbal contract with Loder for it. The plaintiff was 
 present when the ice was loaded on Kusterer's sleigh and 
 forbade the loading and removal, on the ground that he 
 had purchased it from Coats. Kusterer referred the matter 
 to Coats, who said he had sold it to Loder. Both Loder and 
 Kusterer had full notice of the claims of Higgins before 
 they expended any money. It was not like crops or fruit 
 connected with the soil by roots or trees through which 
 they gained nourishment before maturity. It was only the 
 product of running water, a portion of which became fixed 
 by freezing, and if not removed in that condition would 
 lose its identity by melting. In its frozen condition it drew 
 nothing from the land, and got no more support from it 
 than a log floating on the water would have had. 
 
 The court said : " While we think there can be no doubt 
 that the original title to ice must be in the possessor of the 
 water where ' it is formed, and while it would pass with 
 that possession, yet it seems absurd to hold that a product 
 which can have no use or value except as it is taken away 
 from the water, and which may at any time be' removed 
 from the freehold by the moving of the water, or lose ex- 
 istence entirely by melting, should be classed as realty in- 
 stead of personalty, when the owner of the freehold chooses 
 to sell it by itself. "When once severed no skill can again 
 join it to the realty. It has no more organic connection 
 
176 SALES. [CHAP. XI. 
 
 with the estate than anything else has that floats upon the 
 water. Any breakage may sweep it down the stream, and 
 thus cut off the property of the freeholder. It has less per- 
 manence than any crop that is raised upon the land, and its 
 detention in any particular spot is liable to be broken by 
 many accidents. It must be gathered while fixed in place 
 or not at all, and can only be kept in existence by cold 
 weather. 
 
 " In the present case, the peculiar situation of the pond 
 rendered it likely that the, ice could not float away until 
 nearly destroyed, but it could not be preserved from the 
 other risks and incidents of its precarious existence. Any 
 storm or shock might in a moment convert it into floating 
 masses which no ingenuity of black-letter metaphysics 
 could annex to the freehold." 
 
 After further discussing the ephemeral character of ice, 
 and the common law principle of treating nothing move- 
 able as realty unless either permanently or organically con- 
 nected with the land, the learned judge concludes that it 
 should be dealt with in law according to its uses in fact, 
 and that any sale of ice ready formed, as a distinct com- 
 modity, should be held a sale of personalty, whether in the 
 water or out of the water} 
 
 This decision seems to be in accordance with reason and 
 common sense and fairly presents the question what should 
 be denominated personalty and what realty. 
 
 1 In State v. Pottmeyer, 33 Ind., and stationary, why is it not, when 
 
 402, however, it was substantially congealed over the bed of the 
 
 held that ice formed of water in stream, to the thread of which his 
 
 its natural channel constitutes a title extends? " True, nature will 
 
 part of the land and belongs to the in time, if it be not removed, again 
 
 owner of the bed of the stream, change the ice to fluid, and it will 
 
 He has the right to prevent its re- pass away from possession ; but -. 
 
 moval. Bay, Ch. J., held that not more certainly than the chang- > 
 
 water is included in the term land, ing winds and the rising tide will 
 
 See Washburne on Real Prop., b. sweep away the shifting sands. 
 
 3, ch. 4, § 3; Brace v. Yale, 10 Al- See 2 Hilliard on Real Prop., 195, 
 
 len, 441; Bouv. Die, title "Pond." note a; Mill River Manufactur- 
 
 " If water in a pool upon one's land ing Company v. Smith, 34 Conn., 
 
 be part of the realty, because fixed 462. 
 
OHAPTEE XII. 
 CONCERNING PRICE OR AMOUNT. 
 
 § 217. The price an essential element ; the rule of the civil law. 
 
 218. If the price is fixed it must be stated in the memorandum. 
 
 219. The English statute of frauds and Lord Tenterden's act. 
 
 220. The words "price" or "amount "in the statute of frauds of 
 
 the several states. 
 
 221. The price must be payable in money. 
 
 222. The jury to fix the "price" in certain cases; a reasonable 
 
 price. 
 
 223. "Where goods are sold on " moderate terms." 
 
 224. "When the order is silent as to price. 
 
 225. Certain deficiencies not to be supplied by parol proof. 
 
 226. Price must be mentioned, when. 
 
 227. Question of price when the goods have been accepted. 
 
 228. "When the memorandum defective in not stating price. 
 
 229. "When a special action on the case will lie. 
 
 230. Delivery defective unless price or quantity mentioned. 
 
 231. Jury to pass upon the question as to a mistake in the price. 
 
 232. Where price is fixed by valuers. 
 
 233. What is the market price. 
 
 234. What is a reasonable price. 
 
 235. Where several lots are purchased it is an entire contract and 
 
 within the statute of frauds. 
 
 236. An illustration ; Baldey v. Parker. 
 
 237. Rule where pui - chaser pays for some of the articles purchased 
 
 and not for the others. 
 
 238. Illustration ; Aldrich v. Pyatt. 
 
 239. Price may be recovered if purchaser assumes risk of delivery. 
 
 240. Where the price is uncertain. 
 
 241. Value estimated by the jury, when. 
 
 242. Consideration need not be expressed in the memorandum, when ; 
 
 the case of Williams v, Robinson. 
 
 243. In Oregon the consideration must be expressed in the agree- 
 
 ment. 
 
 § 217. The next subject for consideration is that of price 
 or amount, in contracts for the sale of goods, wares or mer- 
 chandise, chattels or things in action. 
 
 12 
 
178 SALES. [chap. XII. 
 
 The price or amount is an essential element if it was a 
 part of the contract. 
 
 By the civil law the certainty of price is a prerequisite to 
 the validity of a contract of sale. The language of the In- 
 stitutes is, Pretium autem constitui oportetj nam nulla 
 emptio sinepretio esse potest; sed et certum esse debet. And 
 Mr. Justice Story once said that this language of the civil 
 law is the language of common sense. 1 
 
 "While in general this rule of the civil law may be based 
 upon common sense, under the decisions which have given 
 construction to the statute of frauds, it can hardly be said 
 that without a price being fixed there can be no purchase. 
 
 § 218. If the price or amount can be made certain, or if a 
 reasonable price is implied by the terms of the contract, the 
 statute is satisfied. 
 
 It is a general rule that there is no valid contract until 
 the price is settled between the parties. But it is deemed 
 settled when the terms of the contract are so fixed as to 
 be ascertained without any reference to the parties them- 
 selves. 
 
 While " price " implies money, it may be cash down or 
 credit. 
 
 In Maddock v. Stock, 2 which was an action for damages for 
 the non-delivery of certain wood, as shown by the declara- 
 tion, Eobinson, 0. J., says: " It does not state the price to be 
 paid for the wood, which is indispensable. If no price was 
 in fact fixed, then the sale should have been averred to have 
 been for a reasonable price, and it should have been averred 
 what that reasonable price was." 
 
 Judgment was given on the demurrer. 
 
 § 219. In the English statute of frauds (section 17), the 
 words " the price of ten pounds sterling or upwards " oc- 
 cur; while Lord Tenterden's act, so-called, reads "value of 
 ten pounds." The decisions in England hold that the word 
 
 iLib. iii, tit. 24; Flagg v. Mann, 2 4U. C. Q. B., 118. 
 2 Sumner, 538. 
 
CHAP. XII.] CONCERNING PRICE OR AMOUNT. 179 
 
 " value " stands in the place of price. These statutes are 
 to be read together. 1 
 
 It may reasonably be conjectured that the object of Lord 
 Tenterden in substituting the word value for " price " was 
 that when the parties have omitted to fix a price it may be 
 open to a jury to ascertain the value in dispute. And so 
 in general the cases have held. 2 And Lord Tenterden's act, 
 also, removed all uncertainty as to the statute of frauds in- 
 cluding executory contracts. 
 
 § 220. In the statute of frauds of some of the states 
 there exist phraseological differences in respect to the 
 "amount," or "price," at or beyond which the contract 
 will be void without being evidenced by a memorandum in 
 writing. 3 
 
 In sixteen states 4 (including Maryland and South Caro- 
 lina, where the English statute of frauds exists intact), and 
 in the territories of Arizona, Dakota, Montana and "Wyom- 
 ing, the statutory words are, "for the price of;" the 
 Georgia statute reads, "to the amount of;" in Oregon the 
 words are, " at a price not less than ; " in Maine the words 
 " for thirty dollars or more " are used ; while in Florida, 
 Iowa and Nebraska, no sum is mentioned in the statute of 
 frauds. 
 
 1 Harman v. Eeeve, 18 Com. B., 4 Arkansas, § 2952; California, 
 587 ; Scott v. Eastern Counties Rail- § 2794, subd. 4 ; Indiana, § 7 ; Mas- 
 way Company, 12 M. & W., 33. sachusetts, § 5; Michigan, § 3; 
 
 2 Hoadly v. McLaine, 10 Bing., Minnesota, ch. 41, tit. 2, § 7; 
 
 482, 488; Coleman v. Gibson, 1 Missouri, § 6; Nevada, §62; New 
 
 Moody & Rob., 168. Hampshire, § 14; New Jersey, § 6; 
 
 » In the statute of frauds of Ar- New York, § 3, tit. 2 ; Vermont, 
 
 kansas, Maine, Missouri and New § 982 ; Wisconsin, § 2307 ; Oregon, 
 
 Jersey, the price or amount men- § 775, subd. 5 ; Dakota, § 626 ; 
 
 tioned is $30. In New Hamp- Mississippi, § 2895 ; Montana, § 13 ; 
 
 shire it is $33 ; in Colorado, Con- Nebraska, § 9 ; Utah, § 6 ; Wyom- 
 
 necticut, Dakota, Georgia, Indiana, ing, § 2. In Connecticut the stat- 
 
 Maryland, Massachusetts, Mich- ute of frauds reads, "sale of per- 
 
 igan, Minnesota, Nevada, New sonal property for $50 or upwards ;" 
 
 York, Oregon, South Carolina, and the same general language is 
 
 Wisconsin, Wyoming, $50; and used in the statutes of Florida 
 
 in California it is $200. and Maine, except the amount. 
 
180 SALES. [CHAP. XII. 
 
 § 221. As already indicated the price or amount must be 
 paid in money, or an obligation given to pay money, in 
 order to constitute a valid contract of sale under the statute 
 of frauds. 
 
 Hence, if any part of the price is paid down, though it be 
 but a penny, or any portion of the goods delivered by way 
 of earnest, which the civil law calls arrha, and interprets to 
 be emptionis venditionis contractce argumentum, the property 
 of the goods is absolutely bound by it ; and the vendee may 
 recover the goods by action, as well as the vendor may the 
 price of them. 1 
 
 § 222. Where the language of the statute of frauds reads 
 "to the amount of;" or, where no amount or price is men- 
 tioned, it is competent for the jury to fix the price or 
 amount of the goods or chattels in controversy. 
 
 On. the other hand, where the statutory words read, "for 
 the price of," and no price is mentioned in the written 
 memorandum, although the price was actually stipulated 
 for in the bargain, it may be reasonably doubted whether 
 the determination of the value or price can properly be left 
 to the jury. The memorandum, in such case, is defective. 
 On these questions, however, the decisions are somewhat 
 variant. 
 
 For instance, in Fuller v. Bean, 2 it was held that, if the 
 price can be made certain, it is sufficient. If the price is 
 not expressly agreed upon at the time of the bargain, it 
 may be determined by other means ; the real value may be 
 shown by evidence; and the law implies that the goods are 
 to be paid for at what they are reasonably worth. 3 
 
 § 223. In Ashcroft v. Morrin, 4 where the contract was to 
 send specified quantities of porter and other malt liquors on 
 
 'Chase's Blackstone, 555. Kingscote, 5 B. & C, 583. Where 
 
 2 34 N. H., 304. a variance as to quantity was held 
 
 » James v. Muir, 33 Mich., 227; fatal, see Churchill v. Wilkins, 1 T. 
 
 Upton v. Winchester, 106 Mass., R.,447; but see Laing v. Fidgeon, 
 
 330; Valpy v. Gibson, 4 C. B., 6 Taunt., 108; 4 Camp., 169; see, 
 
 887. also, Cross v. Eglin, 2 B. & Adol., 
 
 <4 M. & Gr., 450. See Elmore v. 106. 
 
CHAP. XII.J CONCERNING PRICE OK AMOUNT. 181 
 
 "moderate terms," the statement was held to be sufficient 
 to satisfy the statute. In such a case it would be for the 
 jury to determine the value, especially in England, where 
 the statute (9 Geo. 4, ch. 14, sec. 7) uses the word "value" 
 instead of price, and which act is there read in connection 
 with the statute of frauds, 29 Car. 2. 
 
 § 224. And in Hoadley v. McLaine, 1 where a landaulet 
 was ordered without any price being mentioned, Tindal, C. 
 J., observed that, as the contract was silent as to price, "the 
 parties therefore leave it to the law to ascertain what the 
 commodity contracted for is reasonably worth." 
 
 § 225. In general, it may be laid clown as well settled, 
 that, unless the statute provides that the prioe need not be 
 stated in the memorandum, it is fatally defective if the price 
 does not appear therein or in some of the writings consti- 
 tuting the same, especially if a price was agreed upon. 
 
 The price agreed to be paid constitutes a material part of 
 the bargain, and should be stated in the memorandum to 
 make the contract binding. n 
 
 In Stone v. Browning, 3 Kapello, J., said of a letter, admit- 
 ting the agreement to purchase: "It does not state the 
 price or any of the terms of the contract. These deficien- 
 cies cannot be supplied by oral evidence. All the essential 
 parts of the contract must be evidenced by the writing." 
 This is the safer rule. 
 
 § 226. It was decided in James v. Muir 3 that in an execu- 
 tory contract, where the words " for the price of " are used 
 in the statute of frauds, the price must be mentioned in the 
 memorandum. 
 
 That was an action growing out of the sale of timber. 
 The court, Campbell, J"., said : " Where goods are accepted, 
 
 1 io Bing., 582. Allen, J., says, in cases not within 
 
 2 68 N. Y., 604; Newberry v. the statute, parol evidence may be 
 Wall, 65 id., 484; Session Laws of admissible, in aid of written agree- 
 New York, 1863 ; Church v. Brown, ments, and to give effect to them. 
 21 N. Y., 331; Wright v. Weeks, 3 33 Mich., 233. 
 
 25 id., 159. In the last named case, 
 
182 SALES. [chap. XII. 
 
 and nothing has been f?aid about the price, a reasonable 
 price has been recognized as correct." 
 
 And, as he further substantially says, " it is laid down by 
 some authorities, that where a contract is executory and 
 not executed, unless the price is fixed distinctly according to 
 some standard, either of amount, or of market, or of reason- 
 ableness, or some other method of ascertainment, the con- 
 tract is incomplete, and the purchaser is not bound." 
 
 § 227. In Acebel v. Levy, 1 it was in effect held that 
 where a contract is silent as to price', and there is evidence 
 of a parol contract as to price, a recovery could not be had 
 on a quantum valebat, and that a contract in writing was 
 as necessary for a reasonable price as any other. There 
 an agreement was made for a cargo of nuts at their shipping 
 price at Gijon, in Spain. 
 
 § 228. In the case of Yaupel v. "Woodward, 2 it was stated 
 that under the old statute, if a party relied upon two sep- 
 arate writings to make out a contract, or upon a single 
 after-writing, it was necessary that a complete contract 
 should be made out ; nor was parol evidence admissible to 
 vary it. And that the written memorandum of the parties 
 was totally defective if t\\Q price to be paid was not stated 
 therein. 
 
 § 229. Fagan v. Faulkner 3 was an action of assumpsit to 
 recover $150 for five stacks of fodder, which it was alleged 
 the defendant purchased and agreed to receive and pay for, 
 but had refused to do so. Neither the quantity nor the 
 price were agreed upon. " If he (defendant) really made 
 such a bargain," says the court in that case, " and in conse- 
 quenceof the non-i ulfillment of his engagement the plaintiff 
 lost a sale of the property or suffered damage, she might 
 have her special action on the case for consequential dam- 
 ages, but she could not maintain indebitatus assumpsit.'" 
 
 § 230. So in Eapelye v. Smith, 4 "Woodworth, J., declared 
 
 1 10Bing.,376. *6 Cowen, 250; Whitehouse v. 
 
 2 3 N. Y. Leg. Obs., 132. Frost, 12 East, 614 ; Busk v. Davis, 
 
 »5 Ark., 161; E. S. 1838, ch. 30. 2 Maule & Sel., 397. 
 
CHAP. XII.] CONCERNING PRICE OR AMOUNT. 183 
 
 the rule to be, and the principle runs through all the cases, 
 that when something remains to be done as between the 
 buyer and seller in relation to the subject of the sale, or for 
 the purpose of ascertaining either the quantity or price, there 
 is no delivery. Whether the question arises where the 
 property is destroyed, or where the right of stoppage in 
 transitu is drawn in question, cannot make any difference;' 
 in the rule. The evidence must show an intention of the- 
 parties to make an absolute and complete sale. 1 
 
 § 231. But where it is shown that there is a mistake as to 
 the price, by reason of ignorance of the language, or from 
 other reasonable cause, the question becomes one of fact for 
 the jury to find whether the mistake had actually been 
 made, as a test of the existence of a contract. 
 
 Thus, in Phillips v. Bistoli, 2 where a foreigner attended 
 an auction sale and bid in certain earrings for the price of 
 " eighty -eight guineas," and his defense was that he under- 
 stood the bid made by him to be only " forty-eight guineas," 
 and there was a mistake in thus knocking down the ar- 
 ticles to him, Abbot, 0. J., allowed the jury to pass upon 
 the question whether such a mistake actually occurred or not. 
 
 § 232. The authorities agree that the price contemplated 
 by the statute of frauds must be money paid, or promised ; 
 and hence the sale may be for cash or on credit. 
 
 If the agreement be that the price of the article sold 
 shall be fixed by valuers or appraisers, the parties are bound 
 by such valuation or appraisement, and the price so fixed 
 constitutes a part and parcel of the contract itself. 3 
 
 1 Riddle v. Varnum, 20 Pick., 58 ; Greene v. Bateman, 2 Wood. & 
 280 ; Draper v. Jones, 11 Barb. , 263 ; M. , 359. 
 
 Whitwell v. Vincent, 4 Pick., 449. 3 Fuller v. Bean, 34 N. H., 301, 
 
 Where something remains to be 304; Cunningham v. Ashbrook, 20 ; 
 
 done, the performance of such act Mo., 553; Nutting v. Dickinson, 8 
 
 is a prerequisite to a consummation Allen, 540; Bass v. Velturn, 28. 
 
 of the contract, nor does the prop- Minn., 512; Mason v. Phelps, 48 
 
 erty pass until it is performed. Mich., 126; McConneU v. Hughes, 
 
 2 2 B. & C. , 511. See, also, Coch- 29 Wis. , 537 ; Easterlin v. Rylander, 
 rane v. Willis, L. R., 1 Ch. App., 59 Ga., 292; Hutton v. Moore, 26 
 
184 SALES. [chap. XII. 
 
 § 233. "Where the contract is for the sale of an article at 
 a reasonable price, if the article of sale is in the market and 
 has a market value, there is no difference between its value 
 and the market price, and the law adopts the latter as the 
 proper evidence of value. And this is held to be so, not 
 because value and price are really convertible terms, but 
 only because they are ordinarily so in a fair market. 
 
 The market price, strictly speaking, is only an evidence 
 of value ; nor does it constitute a conclusive legal presump- 
 tion of the fact. 1 It will be observed, also, that to make a 
 market there must be buying and selling, purchase and 
 sale. 
 
 § 234. If the memorandum implies that the goods are to 
 be a reasonable or moderate price, it is such a price as the 
 jury upon the trial of the case shall decide as reasonable ; 
 and such price may or may not agree with the current price 
 of the commodity at the port of shipment, at the precise 
 time when such shipment was made. 
 
 § 235. It may be stated as a general rule, deducible from 
 the decisions, that if a person purchase successively at a 
 stated sale several articles of less price than the amount 
 mentioned in the statute of frauds, but when taken together 
 they comprise a larger sum, it is an entire contract, and 
 falls within the operation of the statute. 2 
 
 A . different rule, it has been held, prevails in successive 
 lots sold at an auction. 3 
 
 Ark., 382; McLea v. Robinson, 2 311; Gault v. Brown, 48 id., 185; 
 
 Pugsley & Burbridge (N. B.), 83; Messer v. "Woodman, 22 N. H., 172; 
 
 Brown u Cole, 45 Iowa, 601; Wood- 1 Chitty, Contr., 532; Coffnian v. 
 
 burn Wheel Co. v. Philbrook, 76 Hampton, 2 Watts &S., 377; Tomp- 
 
 Ind., 516; Ames v. Quimby, 96 U. kins v. Haas, 2 Penn. St., 74; Mills 
 
 S., 324; Del. & Hud. Canal Com- v. Hunt, 20 Wend., 431; Allard v. 
 
 pany v. Penn. Coal Company, 50 Greasert, 61 N. Y., 1. See Wood on 
 
 N. Y., 250. Statute of Frauds, §§ 288, 298 ; Bal- 
 
 i Kountz v. Kirkpatrick, 72 Penn. dey v. Parker, 2 B. & C, 37. 
 
 St., 376; Browne. Bellows, 4 Pick., 3 Wells v. Day, 124 Mass., 38; 
 
 189. Einmerson v. Heelis, 2 Taunt., 38; 
 
 2 Jenness v. Wendell, 51 N. H., Eugg v. Minett, 11 East, 218; Roots 
 
 63. See, also, Gilman v. Hill, 36 id., v. Lord Dormer, 4 B. & Ad., 77. It 
 
CHAP. XII.] CONCERNING PEICE OE AMOUNT. 185 
 
 But in Jenness v. "Wendell, supra, it was substantially 
 held that a sale of household furniture, farming tools, and 
 such like articles about a farm or a hotel, or where the sale 
 also includes the stable stock, as it did in this case, or the 
 farm stock and produce, there is ordinarily very little dif- 
 ference in fact between sales at an auction and a sale at any 
 other place, or contracted in any other Avay, of several arti- 
 cles at an agreed price, which are all put together in one 
 account. 
 
 To adopt any other construction of such a purchase 
 would be a virtual repeal of the statute of frauds for all 
 useful or practical purposes in a large amount of sales to 
 which it has been understood as applying. And it was so 
 held in Mills v. Hunt, supra. 
 
 § 236. In Baldey v. Parker, 1 where the plaintiffs were 
 linen drapers, and the defendant bargained for various 
 articles, a separate price being agreed upon for each, and 
 some of the goods were measured in the defendant's pres- 
 ence, and others he assisted in cutting from a larger bulk, 
 and then directed an account of the whole to be sent to his 
 residence (the bill of parcels sent amounting to more than 
 101.), and he refused to accept them, — in the action the 
 plaintiffs were nonsuited. On appeal it was decided to be 
 an entire contract and within the statute of frauds. " Look-, 
 ing at the whole transaction," said Abbott, 0. J., " I am of 
 opinion that the parties must be considered to have one en- 
 tire contract for the whole of the articles. The plaintiffs, 
 therefore, cannot maintain this action unless they can show 
 that the case is within the seventeenth section, the words of 
 which are peculiar, ' Except the buyer shall accept part of 
 the goods so sold and actually receive the same.' It would 
 
 may be somewhat difficult to rec- 177; Jenness v. Wendell, 51 N. H„ 
 
 oncile Jenness v. Wendell, supra, 67. But see Emmerson v. Heelis, 
 
 with the English decisions. 2 Taunt., 38. where the opposite 
 
 12B. &C, 37; Bayley, Holroyd rule seems to have been main- 
 
 and Best, JJ., concurred; Chitty tained ; and in Hodgson v. Le Bret, 
 
 on Contr. (11th Am. ed.), 532, 533; 1 Camp., 223. 
 Messer v. Woodman, 22 N. H., 172, 
 
186 sales, [chap. xir. 
 
 be difficult to find words more distinctly denoting an actual 
 transfer of the article from the seller, and an actual taking 
 possession of it by the buyer. If we held that such a trans- 
 fer and acceptance were complete in this case, it would 
 seem to follow as a necessary consequence that the vendee 
 might maintain trover without paying for the goods, and 
 leave the vendor to his action for the price. Such a doc- 
 trine would be highly injurious to trade, and it is satis- 
 factory to find that the law warrants us in saying that this 
 transaction had no such effect. 
 
 § 237. While it is well settled that where goods amount- 
 ing in the aggregate to more than the sum stated in the 
 statute of frauds are purchased at auction, in several par- 
 cels, upon distinct and separate bids, the whole will con- 
 stitute but one contract, yet, on the other hand, if the 
 purchaser pays for and takes a delivery of some of the sep- 
 arate articles only, leaving the residue undelivered and 
 wholly unpaid for, or in such sales if the articles purchased 
 are to be paid for on delivery and the purchaser afterwards 
 receives and pays for some of the separate articles only, the 
 case would be different. 
 
 On questions arising in regard to such sales, see note. 1 
 
 § 238. In Aldrich v. Pyatt 2 the contract was by parol 
 for the purchase of barley and apples, made at the same 
 time, and was, as the court said, " a valid contract for the 
 sale, both of the barley and the apples, independently of the 
 statute of frauds." 
 
 Nothing was given or paid as earnest or part payment, 
 either for the apples or the barley, but they were to be paid 
 for respectively upon delivery. 
 
 The apples were subsequently delivered, accepted and 
 paid for on the contract, and the question was whether such 
 delivery took the case out of the statute in respect to the 
 barley. 
 
 The court below, in effect, took the ground that the con- 
 
 i Brown v. Hall, 5 Lansing, 180; 2 64 Barb., 395. 
 Keeler v. Vandevere, id., 313. 
 
CHAP. XII. J CONOEKNING PEIOE OR AMOUNT. 187 
 
 tract was an entire one, and by the delivery of the apples 
 the case was taken out of the statute. E. Darwin Smith, J., 
 on the appeal, held that this was error. He said : " The 
 articles sold were of different characters; they were to be 
 delivered at different times and paid for respectively on de- 
 livery." The contract was to be executed ' : distributively," 
 as was said by Judge Denio in respect to the hogs sold in 
 the case of Tipton v. Feitner. 1 
 
 The judgment was reversed. 
 
 § 239. It is well settled that if a purchaser assumes the 
 risk of delivery of goods, and they are destroyed by flood 
 or flame, the seller may recover the price thereof. So, also, 
 if goods are sold and shipped, but by reason of the charac- 
 ter of the articles, or the circumstances of the case, the 
 aggregate amount must be ascertained by the vendee, and 
 the risk of transportation is upon the buyer, and the goods 
 are destroyed, the amount, as near as it can be, may be de- 
 termined by the jury upon the evidence presented. 2 
 
 § 240. And it has been held in a celebrated case, that if 
 at the time of the sale it is uncertain whether "a future 
 crop of turnip-seed " would be of the value of 101. as per 
 contract, and it did exceed that sum, the statute was ap- 
 plicable. 3 
 
 § 241. The true rule seems to have been stated in Clarke 
 v. "Westrope, 4 that if the goods have been- delivered the 
 seller would be entitled to recover the value estimated by 
 the jury, if the purchaser has done an act to render the 
 valuation otherwise impossible. 
 
 § 242. In general it seems to be held that it is not 
 necessary that the consideration be expressed in the note or 
 memorandum, unless the statute of frauds expressly pro- 
 vides that it must be. 
 
 In Williams v. Eobinson, 5 a case arising upon the sale of 
 
 120N. Y.,435. 3 Watts v. Friend, 10 B. & C, 
 
 2 McConnell u.Hughes, 29 Wis., 446. 
 
 537; Turley v. Bates, 2 H. & C, *18 C. B., 765. 
 
 200; Martineau v. Kitching, L. R., 5 73 Me., 194; Cummings v. Den- 
 
 7 Q. B., 456. nett, 26 Me., 397. 
 
188 SALES. [CHAP. XII. 
 
 one hundred tons of ice, the court, Virgin, J., said that, 
 "at common law, while every simple contract, whether 
 oral or written, must be founded on a legal consideration, it 
 need not be expressed in the writing itself, for parol evi- 
 dence is admissible to prove it;" nor did the statute of 
 frauds ever require the consideration to be recited in the 
 fnote or memorandum. 
 
 Following the decisions in Massachusetts, the distinction 
 between the fourth and seventeenth sections does not seem 
 to have been followed in Maine. The court said, "the 
 memorandum need not necessarily mention the considera- 
 tion." 
 
 It seems even so generally to be held in agreements to 
 answer for the debt or miscarriage of another. 1 
 
 § 243. In Oregon, the statute of frauds provides that un- 
 less some note or memorandum, expressing the considera- 
 tion, be in writing and subscribed by the party to be 
 charged, the same shall be void. 
 
 Accordingly, under that statute, in Oorbitt v. Salem Gas- 
 light Company, 2 Prim, C. J., sustained the demurrer to the 
 complaint on the ground that it did not state facts sufficient 
 to constitute a cause of action. 
 
 The respondents brought the action for damages upon the 
 following memorandum : 
 
 "Portland, Oregon, December 16, 1875. This is to cer- 
 tify that the Salem Gaslight Company will purchase from 
 
 1 Packard v. Richardson, 17 Mass., 6 East, 307, it was decided that a 
 122; Ellison v. Jackson, 12 Cal., memorandum of a bargain for the 
 542; Reed on Stat, of Fr., note (m), sale of goods, signed by the party 
 § 427. By the statute of frauds of to be charged, would take the con- 
 Massachusetts (section 3) it is pro- tract out of the statute, though the 
 vided that the consideration need consideration be not expressed in 
 not be stated in the memorandum, the memorandum. The above case 
 but may be proved by legal evi- has been considered quite irrecon- 
 dence. This proviso is not made cilable with Wain v. Warlters, 5 
 expressly applicable to section 5, East, 10, where the term "agree- 
 which relates to the sale of goods, ment" was involved, 
 etc., but the same rule would seem 2 g Oregon, 405. See Gen. L. of 
 to apply to that section. So, in the Or., § 775. 
 English case, Egerton v. Matthews, 
 
CHAP. XII.] CONCEENING PKIOE OE AMOUNT. 189 
 
 Corbitt & Mackay, on arrival of ship from Sydney, Austra- 
 lia, due during the month of March, 1876, one hundred and 
 fifty tons Newcastle coal, delivered at Salem, at $14 per ton 
 of two thousand two hundred and forty pounds. Payment, 
 cash on delivery. (Signed) Salem Gaslight Company, per 
 Miles M. Miller, Sec'y." 
 
 The court said : " The alleged agreement is one for the sale 
 of personal property at a price not less than $50, and there 
 is no consideration expressed in the said writing, nor can 
 any be inferred from anything that is expressed therein. 
 . . . Many of the New York decisions hold that the con- 
 sideration must be expressed in writing, under a statute 
 which does not provide that the consideration must be ex- 
 pressed. 
 
 "Respondent having averred in his complaint that the 
 alleged agreement was in writing, and having set it out in 
 full, it cannot be presumed that it was in writing, as in the 
 case of Taylor v. Patterson." 1 
 
 The court further held that, while a promise made by one 
 party is a good consideration for a promise made by the other 
 party, it must be concurrent and obligatory on both at the 
 same time. And he held that the promise here was void. 
 
 1 5 Oregon, 123. 
 
CHAPTER XIII. 
 
 CONCERNING ACCEPTANCE AND RECEIPT — OF ACCEPTANCE. 
 
 § 244. "What is meant by acceptance under the statute of frauds. 
 
 245. Language of the statute of the several states as to acceptance 
 
 and receipt. 
 
 246. Distinction between " acceptance " and " receipt." 
 
 247. Acceptance in absence of a memorandum must be a substan- 
 
 tial transfer of the property. 
 
 248. Complete acceptance precludes objections as to quantum or 
 
 quality of goods. 
 
 249. A peculiar case of acceptance ; Ex parte Safford. 
 
 250. Acceptance means physical acts, not words ; Dedrich v. Leonard. 
 
 251. When may acceptance take place; option of purchaser; evi- 
 
 dence of acceptance. 
 252.' Illustration; Gilman v. Hill. 
 
 253. Constructive acceptance. 
 
 254. Words will not constitute acceptance; case of Gardet v. Bel- 
 
 knap. 
 
 255. Another example ; Shindler v. Houston. 
 
 256. Acceptance may be a question for the jury, or for the court. 
 
 257. A question of law or of fact. 
 
 258. Where there has been part acceptance. 
 
 259. So long as the purchaser can consistently object to the goods he 
 
 has not accepted them. 
 
 260. Time of acceptance immaterial. 
 
 261. Acceptance may occur long after the contract; the case of 
 
 McKnight v. Dunlap. 
 
 262. Acceptance by the vendee where the goods remain with the 
 
 vendor ; the case of Rappleye v. Adee. 
 
 263. The same subject ; an example. 
 
 264. The same subject continued. 
 
 265. Where there has been no change of possession. 
 
 266. The same subject ; Tempest v. Fitzgerald. 
 
 267. Where assumption of ownership was held to be acceptance. 
 
 268. A part acceptance ; Atherton v. Newhall. 
 268a. Same subject continued ; a Nebraska case. 
 
 269. The case of Cooke v. Millard. 
 
 270. The vendor may have implied authority to select goods for the 
 
 vendee. 
 
CHAP. XIII. J CONCERNING ACCEPTANCE. 191 
 
 § 271. Purchase of goods to arrive; not complete until acceptance. 
 
 272. Seller's dominion over the goods prevents acceptance. 
 
 273. Vendor may hold goods as bailee of vendee. 
 
 274. The case of Brewster v. Taylor. 
 
 275. Goods delivered at a place designated does not amount to an ac- 
 
 ceptance ; Jamison v. Simon. 
 
 276. Acceptance ordinarily follows and precedes the assent of the 
 
 seller. 
 
 277. Acceptance of more goods than were ordered takes the case out 
 
 of the statute of frauds ; the circumstances of the receipt and 
 retention of bill of lading ; Amson v. Dreher. 
 
 278. Case where no bill of lading was sent. 
 
 279. It is error to leave certain facts as to acceptance to the jury; 
 
 Scotten v. Sutter. 
 
 280. Sending goods ordered by a route designated does not amount 
 
 to acceptance of them. 
 
 281. Deductions as to the essentials to constitute acceptance. 
 
 282. Selling the goods is tantamount to acceptance. 
 
 282a. Purchaser has a reasonable time within which to accept ; cir- 
 cumstances govern. 
 
 § 244. The provision of the statute of frauds in relation 
 to acceptance and actual receipt is one of the most impor- 
 tant. Acceptance, as contemplated by the statute, is the 
 assent by the buyer to a proposal by the seller that certain 
 goods shall constitute a portion of the goods sold. In a 
 word, it is taking to the goods and approving. 
 
 While the purpose and intention of this provision of the 
 statute of frauds is to prevent false swearing, and by ren- 
 dering proof in support of a contract more explicit and 
 difficult it may tend to effectuate that end, it is also in- 
 tended to fix the line of demarcation between the negotia- 
 tion and the completion of the contract. 
 
 § 245. While the language of the statute of frauds of 
 the several - states as to acceptance and receipt is somewhat 
 different, the meaning is to the same general purport. 
 
 In substance the statutes read as follows : 
 
 (a) Unless the purchaser accepts or receives part of the 
 
 goods sold. 1 
 
 1 Maine, Vermont, Massachu- buyer accepts and receives ; " Idaho 
 setts, -Nyw YOTlr, Michigan ; Minne- Territory the same. N < t -> ' < e-vl 
 eota statute reads "unless the -J 
 
192 SALES. [chap. XIII. 
 
 (b) Shall accept and actually receive part of the property- 
 sold. 1 
 
 (c) Shall accept part of the goods sold and actually re- 
 ceive the same. 2 
 
 (d) Shall accept or receive part of such goods, or the evi- 
 dences, or some of them. 3 
 
 (e) Shall accept the goods or part of them so sold and 
 actually receive the same. 4 
 
 (f) Unless the purchaser shall receive part of such prop- 
 erty. 5 
 
 (g) "Where no part of the property is delivered, etc. 6 
 Notwithstanding these phraseological differences, it is 
 
 settled by a long line of decisions that acceptance and actual 
 receipt of part of the goods sold are necessary in the ab- 
 sence of a memorandum in writing, or earnest, or part pay- 
 ment, to render the contract enforceable by law. 
 
 § 246. Tor a long time after the statute of frauds was 
 enacted the courts experienced considerable embarrassment 
 in reaching a satisfactory determination as to the meaning 
 of the words " acceptance " and " receipt." 
 
 In one English case 7 doubt was expressed whether there 
 was any real distinction between receipt and acceptance; 
 
 1 Connecticut, New Hampshire, erty is delivered and no part of the 
 Oregon, Colorado, Nebraska. price is paid," is competent, " un- 
 
 2 Arkansas, Georgia, Maryland,* less it be in writing and signed by 
 South Carolina. the party charged or by his law- 
 
 s California, Wisconsin, Nevada, fully authorized agent." It will 
 
 Territories of Arizona, Dakota, be observed that the word accept 
 
 Montana, Wyoming, and Washing- does not appear in the above stat- 
 
 ton. ute of frauds. But it has been held 
 
 * Missouri, New Jersey, Florida, that the danger of fraud is suffi- 
 
 5 Indiana. ciently guarded against by the 
 
 6 The code of Iowa, sections 3663, use of the word " delivered." Bul- 
 3664 (revised and annotated by ex- locku. Stcherge, 13 Fed. Rep., 345,- 
 Chief Justice Miller, 1880), provides C. C. D., la. See, also, Keiwert v. 
 that "no evidence of the con- Meyer, 62 Ind., 587; Garfield v. 
 tracts," embracing contracts "in Paris, 96 U. S. Rep., 563. 
 relation to the sale of personal i Castle v. Sworder, 6 Hurl. & N., 
 property when no part of the prop- 832. 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 193 
 
 and in another case * the court was inclined to think that 
 the person who inserted the words did not have a clear 
 idea of the meaning of acceptance. 
 
 But the construction which attributes distinct meaning to 
 the two expressions " acceptance " and " actual receipt " is 
 now too clearly defined and settled to be considered as an 
 open question. This is reasonably deducible from the decis- 
 ion in Smith v. Hudson, 2 Benjamin on Sales, 3 and the au- 
 thorities generally. 
 
 The distinction between receiving and accepting goods 
 pursuant to an executory contract of "sale is very satisfac- 
 torily discussed and stated in the case of Bacon v. Eccles, 4 
 and some important cases are there cited. 
 
 § 247. The act of acceptance in every case must be volun- 
 tary, reciprocal and unconditional. 
 
 The controlling principle running through all the cases 
 and as laid down in treatises is, that, when the note or 
 memorandum is dispensed with, the statute of frauds is not 
 satisfied with anything short of physical acts of the parties; 
 and that these acts must be tantamount to a transfer of 
 the possession of the goods. 
 
 Upon these several points and the different phases under 
 which they have arisen the cases cited in the note will be 
 found interesting. 5 
 
 § 248. It should be steadily borne in mind that to con- 
 stitute acceptance the vendee must receive the goods as 
 
 1 Marvin v. Wallis, 6 E. & B., Brewster v. Taylor, 63 id., 587; 
 726. Stone v. Browning, 68 id., 598; 
 
 2 6 B. &. S. , 436. Denmead v. Glass, 30 Ga. , 637 ; De- 
 is §§ 139, 140. hority v. Paxson, 97 Ind., 253 ; Bar- 
 «43 Wis., 227. See, also, Olson kalow v. Pfeiffer, 38 id., 221; 
 
 v. Mayer, 56 id., 551; Locke v. Kuhns v. Gates, 92 id., 67; Fawcett 
 
 Williamson, 40 id., 377. v. Glossop, 69 L. T., 287; Pinkham 
 
 5 Remiok v. Sandford, 120 Mass., v. Mattox, 53 N. H., 600 ; Prescott v. 
 
 309; Rodgersi;. Jones, 129 id., 420; Locke, 51 id., 94; Sadler v. Whit- 
 
 Goddard v. Demerrit, 48 Me., 211 ; more, 5 Jur., 315 ; Clark v. Wright, 
 
 Edwards v. Grand Trunk Railway 11 Ir. C. L., 405; Clarksonv. Noble, 
 
 Co., 48 id., 379 ; 54 id., 105 ; Caulk- 2 Q. B. (Ont.), 361. 
 ins v. Hellman, 47 N. Y., 449; 
 13 
 
.194 SALES. [chap. XIII. 
 
 owner. His assumption of dominion over goods purchased 
 is ordinarily very conclusive. 
 
 Not only must there be such a vesting of possession in the 
 vendee as to destroy every lien for the price, as well as the 
 right of stoppage in transitu, but the acceptance must be by 
 acts so unequivocal as to preclude all objection to the quan- 
 tum or quality of the goods. 
 
 It must also clearly appear that the vendee recognizes the 
 binding obligation of the contract. "When all these elements 
 concur there has been such an acceptance as will render the 
 contract enforceable by law. 
 
 Touching the principles laid down in this section, see 
 note. 1 
 
 § 249. As the facts appeared in Ex parte Safford — Re 
 Downing, 2 the habit of Downing was to come to the ware- 
 house of the petitioners frequently, and to buy entire " tan- 
 nages," as the lots from a single tannery are called, on a 
 credit of sixty days. The leather was always weighed in 
 his presence; the damaged hides were thrown out, the 
 shrinkage agreed on, and his leather was piled up by itself, 
 and marked with his name, and he sent for it when he 
 pleased. Some of the leather so bought or selected had 
 not been taken away from the petitioners' store at the time 
 of the great fire in Boston, November 9, 1872. 
 
 1 Safford v. McDonough, 120 Gibbs v. Benjamin, 45 id., 134; 
 
 Mass., 290; Knight v. Mann, 118 id., Young v. Blaisdell, 60 Me., 272; 
 
 143; Townsend v. Hargraves, id., Means v. "Williams, 37 id., 556; At- 
 
 325; Rodgers v. Phillips, 40 N. Y., wood v. Lucas, 53 id., 508; Hewes 
 
 524; Marsh v. Rouse, 44 id., 643; v. Jordan, 39 Md., 472; Hooker 
 
 Sohultz v. Bradley, 57 id. , 646 ; Van v. Knab, 26 Wis. , 511 ; Simpson v. 
 
 Woert v. Albany & Susquehanna Krumdick, 28 Minn., 355; Finney 
 
 Railroad, 67 id., 538; Markham v. v. Apgar, 3 Vroom, 266; Danforth 
 
 Jandon, 41 id., 235; O'Donnell v. v. Walker, 40 Vt, 257; Cooper v. 
 
 Brehen, 7 Vroom (N. J. ), 257 ; Ma- Elston, 7 T. R. , 14, where the sample 
 
 thiessen and Weichers Reflector was no part of the goods ; Bush v. 
 
 Company v. McMahon, 9 id., 536; Holmes, 53 Me., 417. 
 Keiwert v. Meyer, 62 Ind., 587; 2 2 Lowell's Dec, 563; 3 Low. 
 
 Kirby v. Johnson, 22 Mo., 354; Dec., 453. 
 French v. Freeman, 43 Vt., 93; 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 195 
 
 The prime question presented in the case was whether the 
 goods had been accepted and received by Downing within 
 the meaning of the statute of frauds of Massachusetts. 
 
 Although the goods were marked with his name it did 
 not appear that he was present at the time, and he was 
 to take them when he pleased to send his carrier for 
 them. 
 
 Lowell, J., said : " No delivery could be more complete, 
 unless they had come into his personal possession ; and I 
 do not understand it to be denied that, at common law, the 
 property would have passed." 
 
 After stating that the decisions upon the statute have in- 
 troduced some refinements and that he did not intend to 
 depart from those decisions, he says: "The authorities 
 make the distinction between accepting goods and receiving 
 them to be this: Goods may be constructively delivered, 
 as to a carrier or warehouseman, and yet not accepted; if. 
 for instance, they were ordered by word of mouth or bought 
 by sample ; and the carrier or warehouseman is not, as such, 
 without special appointment, the agent of the buyer to 
 ascertain that the goods conform to the order or to the sam- 
 ple; and, therefore, in such a case, the goods may be re- 
 ceived and yet not accepted." 
 
 The facts in this case did not seem to bring the case 
 within the rule that there can be no sufficient receipt by the 
 vendee so long as the vendor holds as vendor, and insists 
 upon his lien for the price. 
 
 The court further said, " the hides were delivered in an 
 unequivocal manner;" and that with "all the refinements 
 to which I have before alluded, I know of no case, either in 
 England or the United States, in which such circumstances 
 have not been considered evidence for the jury to find both 
 acceptance and receipt to satisfy the statute." The debt 
 against the estate was accordingly admitted to proof. 
 
 § 250. In further illustration of the definition and mean- 
 ing of acceptance and receipt as contemplated by the stat- 
 ute of frauds, the language of Learned, P. J., in Dedrich v. 
 
196 SALES. [chap. XIII. 
 
 Leonard, 1 will be found instructive. " These words," he 
 says, " do not mean simply that the buyer is to express in 
 words his satisfaction with the vendor's performance of the 
 verbal agreement. They mean that he is to do something 
 by which he shall actually accept as satisfactory, and receive 
 into his possession, some part of the goods." 
 
 In that case the defendant solicited Dedrich to procure 
 for him a quantity of hickory sticks ; eight cords of the 
 wood to be furnished at a point on Lake Champlain, at $14 
 per cord, delivered. They were delivered at the place 
 designated and measured by the defendant and plaintiff. 
 Evidence was contradictory as to what was then said be- 
 tween the parties. The defendant testified that he told the 
 plaintiff the timber was " unsuitable," and that he would 
 not accept it. He had pleaded the statute of frauds. 
 
 It was held to be an agreement to sell and therefore a 
 void contract, and the judgment in favor of the plaintiff 
 was reversed. 
 
 § 251. It is well settled that acceptance may either pre- 
 cede, accompany, or follow the receipt of goods. 
 
 As already indicated, acceptance may be shown by proof 
 of delivery by the vendor, with the intention of vesting the 
 right of possession of the property in the vendee, together 
 with the cognate rule that there must be an actual receipt 
 by the vendee with the intention of taking to the posses- 
 sion as owner. And the burden of proof in all such cases is 
 upon the party who sets up the contract. 
 
 It may alsg be said that acceptance will not be inferred 
 as matter of law merely from the circumstance that the 
 goods have come into the possession of the vendee. But it 
 must be shown that the purchaser has exercised his option 
 to receive the goods sold or not, or has done some act to 
 deprive him of his option. Then the case is taken out of 
 the statute of frauds and written evidence of the contract is 
 dispensed with. 
 
 1 3 N. Y. State Rep., 780. See Hallenbeck v. Cochran, 20 Hun, 416. 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 197 
 
 In some cases it has been held that the acknowledgment 
 of the alleged vendee to a third person, that he had pur- 
 chased certain goods and offered to sell him half of them, 
 where these facts are proved, was sufficient evidence that 
 he had accepted the goods. 1 
 
 § 252. For example, take the case of Gilman v. Hill. 2 
 There, a verbal contract was made whereby the plaintiffs 
 were to have all the pelts that Gilman should take off be- 
 tween July and October, at fifty cents a piece, and that they 
 might take them from time to time, as they were dried and 
 fit for use. 
 
 As at the time of the bargain pelts amounting to $40 had 
 been taken off (which amount exceeded the statutory limit, 
 " thirty-three dollars "), and the goods to that amount were 
 then fit for delivery, acceptance and use, the contract was 
 within the statute of frauds. The goods were in esse. 
 
 The plaintiffs were at liberty to take the pelts as they be- 
 came suitable for use and as they should wish them. 
 
 There was no embarrassment in the case arising from the 
 position that the property was not at the time of the con- 
 tract in a condition to be the subject of delivery and ac- 
 ceptance. The question, therefore, was whether there had 
 been either an acceptance of a part of the pelts, or part 
 payment, so as to bind the bargain. The instructions given 
 to the jury in the court below were that the goods must be 
 shown to have been " delivered, accepted and received." 
 A verdict was rendered for the plaintiff. 
 
 Eastman, J., decided that the evidence was competent to 
 be submitted to the jury, and that therefrom they might 
 
 'Lemonier v. Charlebois, 5 L. N., ley v. Keeler, 53 N. Y., 114; 
 
 196, S. C. 1882; Munn v. Berger, 4 Halterline v. Rice, 62 Barb., 593; 
 
 L. N., 218, and 6 id., 363; 27 L. C. Bowers v. Anderson, 49 Georgia, 
 
 J., 349, Q. B. 143; Hinde v. Whitehouse, 7 East, 
 
 -36N. H., 311. See, also, Marshall 558; Hanson v. Armitage, 5 B. & 
 
 v. Ferguson, 23 Cal., 65; Gano v. A., 680; Soott v. Eastern Counties 
 
 The Chicago & Northwestern Rail- Railway Company, 12 M. & W., 
 
 road Company, 68 Wis., 1; Haw- 33; 7 Jur., 996. 
 
198 SALES. [chap. XIII. 
 
 find a delivery and acceptance of the eighty pelts on hand 
 at the time of the contract. 
 
 It appeared that the pelts were counted by Gilman and 
 one of the plaintiffs, on the day after the sale, and laid up in 
 piles in the shed belonging to the other plaintiff, but nothing 
 was said or done to indicate that they were not accepted. 
 
 "When we take into consideration the further fact," 
 said the court, " that money and property had been received 
 by Gilman from the plaintiffs to an amount exceeding the 
 $40, which was agreed at the time of the contract should be 
 allowed toward the pelts, it appears to us that the intent of 
 the parties was plain, and that the evidence taken together 
 was competent to show a delivery and actual acceptance of 
 the eighty pelts." 
 
 The purchaser had evidently exercised his option to re- 
 ceive the pelts sold, and that constituted an acceptance. 
 
 The judgment was affirmed. 
 
 § 253. Implied or constructive acceptance has sometimes 
 been declared insufficient, but it is now well settled that ac- 
 ceptance may be inferred as a fact from the surrounding 
 circumstances. 1 The statute of frauds in regard to accept- 
 ance, when a party depends upon that to render the sale 
 valid, as illustrated by the cases, requires that acts, and not 
 words alone, should furnish the evidence of such accept- 
 ance. For words dwell only in the imperfect memory of 
 witnesses, and are always liable to be misunderstood and 
 misconstrued. 
 
 It is well settled that, while acceptance may include re- 
 ceipt, receipt does not include acceptance, but may be evi- 
 dence of acceptance. 2 A promise on the part of the buyer 
 
 i Menzies v. Dodd, 19 Wis. , 343. Marsh v. Rouse, 44 N. Y. , 643 ; He wes 
 
 ^Heemiance v. Taylor, 14 Hun, v. Jordan, 39 Md.,472; see interest- 
 
 149 ; Blackburn on Sales, 22 ; Shep- ing opinion by Lord Denrnan, C. 
 
 herd v. Pressey, 32 N. H., 49; J., in Curtis v. Pugh, 10 Q. B., Ill; 
 
 Artoher v. Zeh, 5 Hill, 200; Jen- Acebelt>. Levy, 10Bing.,376; John- 
 
 nings v. Webster, 8 Cow., 256; son v. Dodgson, 2 Mees. & Wels., 
 
 Chapman v. Searle, 3 Pick., 38; 656. 
 
CHAP. XIII.] CONCEKNING ACCEPTANCE. 199 
 
 that he will take the goods at some future day will not con- 
 stitute acceptance in any case. 
 
 § 254. In Gardet v. Belknap, 1 as it appears in the case, 
 the defendants called at the store of the plaintiff and ver- 
 bally agreed to give him a stated price per gallon for a cer- 
 tain kind of brandy he had on hand, " in good casks ; " and 
 the plaintiff agreed that the defendants might have the 
 brandy as soon as he could select the good casks and set 
 them apart. 
 
 The evidence did not show that the brandy in such casks 
 was ever separated from the other brandy in the plaintiff's 
 store. Neither was a bill of sale made out, nor any mark 
 put upon the brandy to designate it as belonging to the de- 
 fendants; nor was any entry made in the plaintiff's books 
 of the transaction, nor any note or memorandum in writing 
 made of the contract. Some days after this agreement, the 
 plaintiff's clerk called at the store of the defendants and 
 one of them asked him if he could sell the brandy, to which 
 he replied that he could, on account of the defendants, and 
 then went away. The clerk called again the next day, 
 when the defendants disputed the quantity which it was 
 claimed they had agreed to take, but stated that they were 
 ready to receive the quantity agreed upon, if the plaintiff 
 could deliver it according to the agreement. The brandy 
 was never removed from the plaintiff's store, but was, a few 
 days thereafter, destroyed by fire. Upon these facts the 
 defendants, at the trial court, moved for a nonsuit, which 
 was denied. A verdict was rendered in favor of the plaint- 
 iff for $1,780 ; and the defendants appealed. Bennett, J., 
 said : " To hold that such a transaction amounted to a de- 
 livery within the statute of frauds would be equivalent to a 
 repeal of the statute. The delivery must be such as the 
 nature of the case admits. "Wine may be delivered by giv- 
 ing up the keys of the wine cellar; and the consent of a 
 party upon the spot is sufficient possession of a column of 
 
 1 1 California, 399. 
 
200 SALES. [CHAP. XIII. 
 
 granite, which, by its weight and magnitude, is not suscept- 
 ible of any other delivery, and when the declared intention 
 is to take possession. A bill of sale of timber, and mate- 
 rials of great bulk, or marking the timber, has been held 
 such a delivery and change of possession as the subject- 
 matter reasonably admitted." 
 
 While the authorities agree that the delivery may be ac- 
 cording to the subject-matter, the property must always be 
 placed under the control of the vendee. 1 
 
 In this case all that the plaintiff relied upon to make out 
 a delivery was " words ; " but clearly the statute requires 
 more than that ; it requires acts. 
 
 The judgment was reversed. 
 
 § 255. In further illustration of the requirements under 
 the statute of frauds, take the case of Shindler v. Houston. 2 
 The parties met where the plaintiff's lumber lay. The 
 plaintiff said to the defendant, " What will you give for the 
 plank?" The defendant answered, "Three cents a foot." 
 The plaintiff asked, " What will you give for the scant- 
 ling?" The defendant answered, " One and a half cents a 
 foot." The plaintiff then said, " The lumber is yours." 
 
 If words, without acts, could operate to take any case out 
 of the statute, it would be difficult to imagine a stronger 
 state of facts to effect that purpose. But it was held that 
 there was no delivery. Gardner, J., observed that " mere 
 words are not sufficient ; " and Bronson, J., said the statute 
 " calls for acts." 
 
 § 256. There may be an acceptance without receipt and 
 there may be a receipt of goods without acceptance. And 
 whether or not there has been an acceptance, as gathered 
 from the acts and intention of the parties, is for the determi- 
 
 1 2 Kent's Comm., 500; Tempest bearer, is a symbol sufficient to 
 
 v. Fitzgerald, 3 Barnwell & Aid., transfer title to the goods by deliv- 
 
 680 ; Jewett v. Warren, 12 Mass. , ery of the order. Mueller v. Guye, 
 
 801. A delivery order for goods 12 Mo. App. Rep., 589. 
 
 sold on 'change, signed by the 2 1 N. Y., 261. 
 owner, drawn in favor of the 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 201 
 
 nation of the jury. 1 They are to deduce the ultimate fact 
 from certain probative facts by a process of natural reason- 
 ing. A presumption of fact is said to be the natural con- 
 nection of one fact with others by a combined process of 
 proof and argument. 
 
 On the other hand, it is the province of the court to with- 
 hold the facts from the jury, when they are not sufficient to 
 warrant the finding of an acceptance; and also to say 
 whether there is evidence of a constructive delivery suffi- 
 cient to satisfy the statute of frauds. 2 
 
 Such a conclusion of law is the result of artificial reason- 
 ing, and this is often in exact accord with natural reason. 
 And the result reached by a presumption of law may be a 
 fact equally with that attained by a deduction of the same 
 fact from the existence of other and evidentiary facts. 
 Hence, it has also been held, that if, from the facts in evi- 
 dence, the result can be reached by that process of natural 
 reasoning adopted in the investigation of truth, it becomes 
 an ultimate fact, to be found as such. 
 
 If, on the other hand, resort must be had to the artificial 
 process of the law, in order to reach a final determination, 
 the result is a conclusion of law. 3 
 
 § 257. Courts are often called upon to draw nice distinc- 
 tions in determining whether there has been an acceptance, 
 and whether the case should be withheld from the jury. 
 
 When the law can pronounce upon the facts, whether 
 there has been an acceptance, the question becomes one of 
 law; but in other cases, the question of law may depend 
 upon the conclusion of the jury upon the facts proved. 
 
 1 Stone v. Browning, 68N.Y., 604; Ga., 633; Denny v. Williams, 5 
 
 Sawyer v. Nichols, 40 Me., 212; Allen, 5; Howard v. Borden, 13 id., 
 
 DyeruLibby, 61 id.,45; Chaffinu 299; Tower v. Tudhope, 37 U. C. 
 
 Doud, 14Cal., 384; Stevens v. Stew- Q. B., 200; Kealy v. Tenant, 13 Ir. 
 
 art, 3 id., 149; Garfield v. Paris, 96 C. L. R., 394. 
 
 U. S., 557; Borrowscale v. Bos- 3 Levins v. Rovegus, — Cal., 
 
 worth, 99 Mass., 381; Wartinan v. (1886), Sup. Ct. of California, — ; 
 
 Breed, 117 Mass., 18. Pacific Rep., ; 1 Greenl. on 
 
 2Pinkham v. Mattox, 53 N. H., Ev., §§ 44, 48; Burrill on Circum. 
 
 604; Phillips v. Ocmulgee Mills, 55 Ev., 52. 
 
202 SALES. [chap. XIII. 
 
 In general it is held that if the evidence be so slight that 
 the court would be bound to set aside any number of ver- 
 dicts, finding an acceptance, that should be rendered upon 
 it, toties quoties, it is the duty of the court to withhold the 
 case from the jury. And this duty may arise even in cases 
 where the court might admit that there was a scintilla of 
 evidence tending to show an acceptance, but not enough to 
 warrant such finding. 1 
 
 The acceptance and receipt requisite to dispense with the 
 memorandum in writing to satisfy the statute implies more 
 than an action of the mind or mere words. 
 
 § 258. While the courts have experienced some embar- 
 rassment in determining what acts will constitute an ac- 
 ceptance, it is now well settled that the acceptance and 
 receipt of a part of the goods, whether by sample or other- 
 wise, does not obligate the buyer to take the rest of the 
 goods, unless they correspond in hind and quality to the con- 
 tract. 
 
 The acceptance and receipt of goods, in order to render a 
 written contract unnecessary under the statute, are not such 
 an acceptance and receipt as will preclude the vendee from 
 questioning the kind or quality of the goods, or of disput- 
 ing the fact' of the performance of the contract. The buyer 
 is entitled to the opportunity of deciding whether or not 
 the goods correspond with the order or sample. 2 
 
 i Browne on Statute of Frauds, 95; Hughes v. Jordan, 39 Md., 472; 
 
 sec. 321 ; Gray v. Davis, 10 N. Y., Lloyd v. Wright, 25 id., 215.; Haus- 
 
 293; Corning v. Colt, 5 Wend., 253 ; man v. Nye, 62 Ind., 491 ; Dows v. 
 
 Hilliard on Sales, 135, and cases Montgomery, 5 Robt. , 445 ; Kellogg 
 
 cited. And see Elmore v. Stone, 1 v. Witherhead, 6 Sup. Ct. R. (T. & 
 
 Taunt. R.,.458, where an exception C), 525 ; Morton v. Tibbett, 15 Q. B., 
 
 to the rule, seems to be stated ; and 428; Bushell v. Wheeler, 15 id., 
 
 questioned in Howe v. Palmer, 3 442; Hunt v. Hecht, 8 Ex., 814; 
 
 Barn. & Aid., 324; and Proctor v. Cusack v. Robinson, 1 Best & S., 
 
 Jones, 2 Carr. & P., 534; Duplex 299; Norman v. Phillips, 14 M. & 
 
 Safety Boiler Company v. McGuin- W., 277; Hopton v. McCarthy, 10 
 
 ness, 64 How. Pr. R., 99 (1882). L. R. Ir., 266; Blackburn on Sales, 
 
 2 Stone v. Browning, 68 N.Y., 604; 22, 23; Pierson v. Crooks, 4 N. Y. 
 
 51 N. Y. , 211 ; Caulkins v. Hellman, State R. , 578 ; Gurney v. Atlantic, 
 
 47 id., 449; Beirne v. Dord, 5 id., etc., Railway Co., 58 N. Y., 358. 
 
CHAP. XIII.*] CONCERNING ACCEPTANCE. 203 
 
 The right of inspection and examination preceding the 
 obligation to accept the property is maintained by all the 
 authorities where the sale is executory, and the property 
 itself is unascertained or separated. 
 
 § 259. If goods of a particular description are ordered to 
 be sent by a carrier, the buyer must in every case receive 
 the package to see whether it answers his order or not; it 
 may even be reasonable to try part of the goods by using 
 them ; but though this is a very actual receipt, it is no ac- 
 ceptance so long as the buyer can consistently object to the 
 goods as not answering his order. 
 
 In all such cases, if the buyer has exercised his option to 
 accept and actually receive the goods, or has done some- 
 thing in regard to the goods to deprive him of his option, 
 it will be deemed an acceptance. 1 
 
 Thus, in Norman v. Phillips, 2 the plaintiff received a 
 verbal order from the defendants for certain goods to be 
 sent to them by an agreed-upon route. The invoice was 
 forwarded at the same time, but it was immediately re- 
 turned by the defendants with a letter stating that it did 
 not correspond with the contract, and they refused to ac- 
 cept the goods. It was held that there was no evidence of 
 an acceptance and actual receipt of the goods by the de- 
 fendants sufficient to satisfy the statute, and that the plaint- 
 iff could not recover the price. 
 
 § 260. In general, the statute of frauds does not require 
 that the acceptance of goods shall take place at the time of 
 the parol contract of sale. 
 
 But the decisions hold that a subsequent acceptance of 
 part of the goods sold, where the intention is to vest the right 
 of possession of the whole in the buyer, renders the contract 
 valid. The time of acceptance is immaterial. 
 
 § 261. The Kevised Statutes of New York (1830) modi- 
 fied the original clause of the statute of frauds of that state 
 
 mill v. McDonald, 17 Wis., 97; Wis., 227; Smith v. Stoller, 26 
 Mason v. H. Whitbeck Co., 35 Wis., 671. 
 Wis., 164; Bacon v. Eccles, 43 2 14 M. & W., 277. 
 
204: sales. [chap. xnr. 
 
 relating to sales of goods, etc., in this : It requires a part 
 payment " at the time " of the making of the contract. Bat 
 in that state acceptance may be after the contract is made. 
 The statute does not specify when either the goods are to 
 be accepted or received. 1 The statute has received definitive 
 judicial construction. 
 
 In the case of Sprague v. Blake, 2 Co wen, J., decided that 
 a subsequent acceptance, in whole or in part, of the goods 
 agreed to be sold, renders the contract valid ; but in Sey- 
 mour v. Davis 3 the opposite doctrine was enunciated. This 
 mooted question was finally set at rest by the able decision 
 of Paige, J., in the court of appeals, in McKnight v. Dun- 
 lap. 4 There it was decided that a verbal contract for the 
 sale of goods, exceeding $50 in price, is valid if a part of 
 the same has been delivered to and accepted by the pur- 
 chaser under the contract, although such delivery and ac- 
 ceptance took place several months after the making of the 
 contract. There the contract was made in June, for the sale 
 of five thousand bushels of malt ; one thousand four hun- 
 dred bushels were delivered and accepted in August and 
 September following. An oral contract may be considered 
 good as a proposition, and a subsequent delivery and ac- 
 ceptance of a part or the whole of the goods as an accept- 
 ance of the proposition and conclusion of a verbal contract. 
 
 § 262. Where the goods remain in the possession of the 
 vendor, although there has been a complete acceptance and 
 receipt by the vendee, it must be under circumstances which 
 clearly show that the vendor holds as agent or bailee, and 
 that he has relinquished all claim to the goods. It must be 
 tantamount to an actual receipt. 
 
 1 Notes of the Eevisers, 3 R. S. , validated by a tender and accept- 
 
 2d ed., 656, 657. ance afterwards. Jackson v. Hub- 
 
 2 20 Wend.. 61 (1838). • bard, 36 id., 10 ; McCarthy v. Nash, 
 
 82 Sandf. S. C. R., 245 (1848). 14 Minn., 127; Gaston v. Penney, 
 
 *1 Seld. (N. Y), 537(1851). See 24 id., 322; Chaplin v. Rogers, 1 
 
 Buckingham v. Osborne, 44 Conn. , East, 192 ; Hawley v. Keeler, 53 
 
 134, where it is held that a contract N. Y., 114; Barnes v. Jevons, 7 
 
 of sale of goods, inoperative under Carr. & P., 288. 
 
 the statute for want of delivery, is 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 205 
 
 In Kappleye v. Adee L there was an oral contract for the 
 sale of twenty-five sheep. They were selected by the 
 plaintiff out of the defendant's flock, marked with plaintiff's 
 mark and put in a separate inclosure, the defendant agree- 
 ing to pasture them for eight or ten days. As the pasture- 
 age where they were placed was poor, it was agreed, a few 
 hours after the contract was made, that the sheep might 
 run with the others, and they were according^ turned back 
 with the flock. A note of $16 held by the plaintiff was to 
 be applied towards the purchase. The plaintiff did not 
 have the note with him then, and the defendant agreed to 
 send for it the same day. He did not do so, although the 
 plaintiff, on his return home, drew a check for the balance 
 of the purchase money and left it and the note with his 
 wife to deliver to the defendant's servant as agreed. 
 
 The defendant sold and delivered the sheep to another 
 person. The plaintiff thereupon tendered the note and check, 
 and also the amount of the check in money, and demanded 
 the sheep, which was refused. 
 
 The trial judge charged that, unless the sheep were actu- 
 ally delivered to and accepted by the plaintiff, the contract 
 was void under the statute of frauds, and left that question 
 to the jury. A verdict was rendered in favor of the plaintiff 
 for the difference between the note and the price received 
 by the defendant for the sheep. 2 
 
 A new trial was denied. On appeal, the general term, E. 
 Darwin Smith, J., sustained the ruling of the court below, 
 holding that the evidence warranted the jury in finding a 
 delivery and acceptance. 
 
 The circumstance that the sheep were selected and sep- 
 arated from the rest of defendant's flock, and the plaintiff's 
 mark put upon them, and then, after such separation, it was 
 agreed to let them run with the defendant's sheep for a few 
 days, was a question of intention for the jury, relating as it 
 
 1 65 Barb., 589; 1 Sup. Ct. R. (T. Eng. Reporter, 3, decided July 31, 
 AC.), 127. 1885; 63 N. H., 397. But see 
 
 2 See Clark v. Labreche, 1 New Vance v. Boynton, 8 Cal., 554. 
 
206 SALES. [chap. XIII. 
 
 did to the delivery and acceptance of the sheep. The acts 
 of the vendee indicating the exercise of ownership is as 
 properly submissible to the jury as evidence of receipt and 
 acceptance. 1 
 
 § 263. There may be found cases in the books in which 
 the goods remain in the possession of the seller, and yet 
 have been accepted and actually received by the buyer. It 
 is settled that in such case the seller holds possession of the 
 goods, not by virtue of his lien as seller, but under some 
 new contract by which the relations of the parties are 
 changed. 
 
 Thus, suppose a case like this : A. goes into the store of B. 
 and selects certain goods at stated prices; the goods are 
 placed in a till with a slip of paper pinned upon them con- 
 taining the name of A. A. then goes away, nothing being 
 said as to when or where the goods are to be delivered. A 
 month afterwards B. meets A. and says to him : " I have a 
 chance to sell part of your goods which were laid out for 
 you. A. says " Sell them." B. apcordingly does sell a part 
 of the goods, and thereafter renders a bill to A. for the 
 whole amount of the goods, crediting thereon the part sold. 
 A. refuses to receive or pay for the goods so remaining. 
 
 Query: Is A. under the statute liable to B. for the 
 amount? 
 
 Answer: A.'s conduct was such an exercise of ownership 
 over the goods, by directing B. to "sell " a part of them, 
 as that the relation of the parties had changed, and consti- 
 tuted an acceptance and receipt of the goods. 3 In so sell- 
 ing the part, B. acted as the agent of A. 
 
 iGray v. Davis, 10 N. Y., 385; important case of "Walden v. Mur- 
 
 Woodford v. Patterson, 32 Barb., dock, 23 Cal., 540, and McLaughlin 
 
 630; Evans v. Harris, 19 Barb., 416; v. Peatti, 27 Cal., 451. 
 Bissell v. Balcom, 39 N. Y., 275; 40 2 Safford v. McDonough, 120 
 
 Barb., 98: Kirby v. Johnson, 22 Mass., 290; Janvrin v. Maxwell, 23 
 
 Mo., 854; Malonev. Plato, 22 Cal., Wis., 51; Means v. Williamson, 
 
 108; Wytiet'. Kelly, 41 Barb., 594; 37 Me., 556; Pinkham v. Mattox, 
 
 Brown v. Hall, 5Lans., 177; Chap- 53 N. H., 600; Marsh v. Rouse, 44 
 
 man v. Searle, 3 Pick., 38; Ely v. N. Y., 643; Young v. Blaisdell' 60 
 
 Orrnsby, 12 Barb., 570. Seethe Me., 272; Green v. Merriam,28 Vt., 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 207 
 
 § 264. Lansing v. Turner l was an action on the case for 
 breach of a contract in not delivering to the plaintiffs, in a 
 good and merchantable condition, a quantity of beef. 
 
 The contract of purchase was made in the autumn ; the 
 consideration was paid in January following. The beef 
 remained in the store of the defendants until the following 
 summer, when it was found to be damaged. 
 
 The court held that the property in the goods was so far 
 transferred upon the payment of the consideration money, 
 that it was at the risk of the plaintiff. Clearly the acceptance 
 was such as to remove all doubt as to the actual intention 
 of the parties to the contract. Nor is there any principle 
 better settled than that the goods may remain in the pos- 
 session of the vendor, if he assume a changed character in 
 regard to them, and yet be accepted and actually received 
 by the vendee, thus converting the possession of the vendor 
 into that of the vendee, through his agency. 2 Mr. Justice 
 Blackstone lays down the principle that a bargain struck, 
 and payment of the purchase money, vests the property in 
 the goods in the vendee. As an illustration he puts the caso 
 of a horse dying while in possession of the vendor, after 
 payment of the consideration. The loss, he says, must 
 fall on the vendee. 3 
 
 In all such cases the inference of law is that the vendor is 
 a mere bailee, retaining the possession at the instance or 
 request of the vendee. It may also be stated as well settled, 
 that, to so vest the property in the thing in the vendee, 
 there must be an actual or constructive delivery, and the 
 latter may be inferred from the surrounding circumstances. 
 
 201; French v. Freeman, 43 Vt., J 2 Johns., 16; Bissell v. Balcom, 
 
 93 ; Yale v. Seely, 15 Vt., 221 ; Con- 49 Barb., 98. 
 
 way v. Edwards, 6 Nev., 190; Arm- 2 Weld v. Came, 98 Mass., 153; 
 
 strong v. Turner, 49 Md., 590; Bui- Barrett v. Goddard, 3 Mason, 107; 
 
 lard v. Waite, 16 Gray, 57; Shep- Janvrin v. Maxwell, 23 Wis., 51; 
 
 herd v. Pressey, 32 N. H., 49; Cas- Hollenbeeker v. Napier, 3 Caines, 
 
 tie v. Sworder, 4 L. T. N. 8., 868; 182. 
 
 6 H. & N., 828; Dennison v. Carna- 3 2 Bl. Com., 448; Shep. Touch- 
 
 han, 1 E. D. Smith, 144 ; Beaumont stone, 224 ; Bowers v. Anderson, 49 
 
 v. Bungeri, 5 C. B., 301. Ga., 143. 
 
208 SALES. [CHAP. XIII. 
 
 §.265. la Vance v. Boynton. 1 where H., the owner of 
 barley which he had piled up in his corral, sold five hun- 
 dred sacks thereof to V., who had it separated and marked 
 " V." and piled up in another part of the corral, and em- 
 ployed a third person to take care of the same for him, and 
 H. afterwards sold and delivered the same to B., it was held 
 that B. was entitled to the property, the sale from H. to V. 
 not being followed by an actual and continued change of 
 possession. Here it would seem that there was a change of 
 possession, and that the acceptance and delivery to B. was 
 complete. 
 
 § 266. In Tempest v. Fitzgerald 2 there was an oral agree- 
 ment in August to purchase a horse, then on the plaintiff's 
 premises, and to fetch it away about September 27th. 
 
 The parties understood it was to be a ready-money bar- 
 gain. 
 
 The defendant at the time was visiting at the plaintiff's 
 house; he soon after left, and returned September 20th. 
 He then directed the horse to be taken out of the stable ; 
 he and his servant, in turn, mounted, galloped and leaped 
 the horse, and after they had so done his servant cleaned 
 him. The defendant himself then gave directions that a 
 roller should be taken off and a fresh one put on, and that 
 a strap should be put upon his neck, which were accordingly 
 done. 
 
 He then asked the plaintiff's son if he would keep the 
 horse for another week. He said he would do it to oblige 
 him. 
 
 The defendant then agreed to call and pay for the horse 
 when he returned from the Doncaster races, about the 26th 
 or 27th of September. He returned on the 27th, with the 
 intention of taking the horse away, but it having died the 
 day before, refused to pay the price for the animal. 
 
 Park, J., at the trial, left it to the jury to say if the de- 
 fendant had exercised acts of ownership over the horse, 
 
 18 Cal., 554. See, also, Lyle v. 2 3 B. & Ad., 680. 
 Shinnebarger, 17 Mo. App., 67. 
 
CHAP. XIII. j CONCERNING ACCEPTANCE. 209 
 
 and, if so, to find for the plaintiff. They gave judgment 
 for the plaintiff. The defendant appealed. The court, Ab- 
 bott, C. J., Bayley, Holroyd and Best, JJ., decided that there 
 had been no acceptance. That the defendant had no right 
 of property in the horse until the price was paid; and that 
 until then he could not exercise any right of ownership, 
 and if he had at that time ridden away with the horse, the 
 plaintiff might have maintained trover. 
 
 § 267. In the leading English case of Marvin v. Wallis, 1 
 a bargain was entered into for the sale and delivery of a 
 horse. After the parol contract was made, the seller asked 
 the buyer to lend the horse to him for a short time, which 
 the buyer assented to, and the seller retained the animal 
 for about two weeks, and then sent the horse to the buyer, 
 but he refused to receive it. 
 
 There the court held that the assumption of ownership 
 in thus "lending the horse " constituted a sufficient receipt 
 and acceptance. That there had been a change of character 
 in the seller from that of owner to that of bailee and agent 
 of the buyer. 
 
 The plaintiff had judgment. 
 
 § 268. The quite recent case of Atherton v. ISTewhall 2 
 presents the question as to what will constitute an accept- 
 ance and receipt of goods. 
 
 The plaintiffs were dealers in leather at Boston; the de- 
 fendants were manufacturers of boots and shoes at Lynn. 
 The defendants orally agreed to purchase " what leather 
 was adapted to their purpose," being Leather " light weight," 
 to be selected from a certain lot of about " eight hundred 
 sides," then in a pile in the plaintiffs' store. 
 
 After the defendants left the plaintiffs' store, the plaint- 
 iffs " sorted out " the leather intended for the defendants, 
 
 16 E. & B., 726; 25 L. J. Q. B., pie v. Thayer, 16 id., 28; Carter v. 
 
 369; Oliphant v. Baker, 5 Denio, Willard, 19 id., 1; Appleton v. 
 
 379; Elyu Ormsby, 12 Barb., 570; Bancroft, 10 Met., 236. But see 
 
 Green v. Merriam, 28 Vt., 801; Phelps v. Hunnewell, 4 Greenl., 
 
 Bullard v. Wait, 16 Gray, 55; Tux- 376. 
 
 worth v. Moore, 9 Pick. , 347 ; Whip- 2 123 Mass., 141 (1877). 
 14 
 
210 SALES. [CHAP. XIII. 
 
 which comprised " six hundred and sixty sides," and had 
 them put up into " forty-four rolls," the weight of each roll, 
 and the name of the defendants' firm, being marked thereon. 
 The rolls were then placed near the front door of the plaint- 
 iffs' store, ready for delivery. During the afternoon, on 
 Saturday, an expressman who, before this transaction, had 
 taken goods from the plaintiffs' store for delivery at Lynn, 
 called, and took six rolls (ninety sides) of leather from the 
 lot in question. The expressman had received no directions 
 from any one to transport the leather to the defendants. 
 He did not deliver the rolls so taken until the following 
 Monday. On that day the plaintiffs' store, including the 
 five hundred and seventy sides remaining, was burned (in 
 the great Boston fire of November 9, 1872). 
 
 Two days afterwards one of the defendants called at the 
 plaintiffs' store, produced the bill of "six hundred and sixty 
 sides," and requested their book-keeper to correct it so as 
 to cover only the leather actually received, and the book- 
 keeper deducted five hundred and seventy sides from the 
 bill. On the 20th of March, 1873, the defendants tendered 
 to the plaintiffs $394, the cost of the " ninety sides," which 
 they refused to receive. 
 
 The plaintiffs sued for the full amount. 
 
 In the trial court it was ruled that upon these facts there 
 was no evidence of delivery or acceptance of the "five hun- 
 dred and seventy sides." 
 
 Judgment was for the defendants and the plaintiffs ap- 
 pealed. 
 
 Gray, 0. J., considered it unnecessary to inquire whether 
 there was a sufficient delivery to complete the sale, as it was 
 clear, upon the authorities, that there was not such an accept- 
 ance and receipt of part of the goods as to satisfy the statute 
 of frauds. 
 
 He held that an acceptance must be by the buyer him- 
 self or by some one authorized to accept for him. 
 
 " The acts of the buyer on Saturday," said the learned 
 justice, " did not constitute such an acceptance, because, ac- 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 211 
 
 cording to the seller's own testimony, the buyer merely 
 agreed to take all the sides of leather of a certain thickness, 
 which were not then set apart by themselves, but formed 
 part of a large pile from which they were afterwards to be 
 selected by the seller." 1 
 
 The receipt of part of the leather by the expressman did 
 not constitute such an acceptance, because he was not au- 
 thorized to accept so as to bind the buyer. 2 
 
 The acceptance by the buyer on Monday of the part de- 
 livered by the expressman was not a sufficient acceptance 
 to take the sale of the whole out of the statute, because 
 this was not done with the intention to perform the whole 
 contract, and to assert the buyer's ownership under it; but 
 on the contrary, he immediately informed the seller's clerk 
 that he would be responsible only for the part received. 
 The judgment was affirmed. 
 
 This is a succinct and clear exposition of the law on this 
 subject. 
 
 § 268a. In Farmer v. Gray 3 the question of part accept- 
 ance was involved. 
 
 There the plaintiff purchased by sample of the defendants' 
 agent goods amounting to about $300. The defendants 
 were grocers in Chicago. They shipped the goods, except 
 one sack of rice, over the Kock Island & Pacific Eailway 
 to the plaintiff on the 15th of June, 1882, and on the 21st 
 of that month they shipped the rice over the same route to 
 the plaintiff. The goods first shipped were greatly dam- 
 aged and partially destroyed in a cyclone at Grinnell, Iowa, 
 and reached Lincoln, the plaintiff's place of business, in a 
 
 1 See, on this point, Knight v. in the country, of a merchant in 
 Mann, 118 Mass., 143 ; Townsend v. London, the delivery of them by 
 Hargraves, 118 id., 325, 333. the seller to the carrier from whom 
 
 2 Johnson v. Cuttle, 105 Mass., the buyer had been in the habit of 
 447;Kimberlytt Patchin, 19 N. Y., receiving goods, was held a suffl 
 333 ; Kein v. Tupper, 52 N. Y., 550. cient delivery. But see Hanson v. 
 In the early case, Hart v. Satt- Armitage, 5 B. & Aid., 557. 
 
 ley, 3 Camp., 528, where goods 3 16 Neb., 401. 
 were ordered verbally by a trader 
 
212 SALES. [ohap. XIII. 
 
 bad condition, and the plaintiff refused to receive them. 
 The rice was afterward received in good order and was 
 paid for. The defense was that the goods did not corre- 
 spond with the sample; and that the contract was verbal 
 and no note or memorandum in writing was made of the 
 sale. The court, Maxwell, J., decided that " the testimony 
 showed that but one order was given for the goods, includ- 
 ing the rice ; that the order for the goods was entire. This 
 being so, the acceptance of a part of the goods took the case 
 out of the statute of frauds." 
 
 § 269. One of the most authoritative cases involving this 
 clause of the statute is Cooke v. Millard. 1 
 
 There the defendants visited the plaintiff's lumber-yard 
 to purchase certain lumber. The lumber was of the desired 
 quality, but had to be dressed, rabbetted and cut in sizes to 
 suit the wants of the defendants. This the plaintiff agreed 
 to do ; and also agreed, when the lumber was ready for 
 shipment, to notify one Percival, a forwarder, who, the 
 defendants said, would transport it to them; all of which 
 was done. Percival omitted to take the lumber on that 
 day, and on the following morning it was destroyed by fire. 
 
 It was necessary, therefore, to determine whether the cir- 
 cumstances were sufficient to turn the executory contract 
 of sale into an executed contract, independently of the stat- 
 ute ; and also whether there was sufficient evidence of an 
 acceptance and receipt to take the case out of the statute of 
 frauds. 
 
 Dwight, C, said : " Under the facts the case seems to fall 
 within the rule laid down by Mr. Blackburn, in his work on 
 Sales, 2 thai where, by the agreement, the vendor is to do 
 something to the goods for the purpose of putting them 
 into that state in which the purchaser is to be bound to ac- 
 cept them, or, as it is sometimes worded, into a deliverable 
 
 1 65 N. Y., 352. by number, weight or measure, the 
 
 2 Blackburn on Sales, pp. 151, sale is incomplete until the bar- 
 152; 2 Kent's Com., 496. If goods gained-for property is separated and 
 are sold while mingled with others, identified. 
 
OHAP. XIII.] CONCERNING ACCEPTANCE. 213 
 
 state, the performance of these things shall, in the absence 
 of circumstances indicating a contrary intention, be taken 
 to be a condition precedent to the vesting of the property. 1 
 
 Proceeding on the view that an executory contract may 
 pass into the class of executed sales by acts of subsequent 
 appropriation, the justice further says that "if the subse- 
 quent acts of the seller, combined with evidence of inten- 
 tion on the part of the buyer, show that specific articles 
 have been $et apart in performance of the contract, they 
 may be an executed sale and the property in the goods may 
 pass to the purchaser." 
 
 § 270. The doctrine as enunciated by Mr. Blackburn re- 
 quires the assent of both parties, though it is not necessary 
 that such assent should be given by the buyer subsequently 
 to the appropriation by the vendor. It is enough that the 
 minds of both parties acted upon the subject and assented 
 to the selection. 2 Thus, in Browne v. Hare, 3 it was said 
 that the vendor may be vested with an implied authority 
 by the vendee to make the selection and thus to vest the 
 title in him; but such authority, ordinarily, would only be 
 applicable where the chattels exist, and a mere selection 
 from a mass of the same kind is requisite. 
 
 The principle of Keiri v. Tupper 4 was that the mere act 
 of the seller in putting goods in a deliverable condition does 
 not pass the title until the acceptance of them by the buyer. 
 For a sale, contemplated by the statute, is not complete un- 
 til the buyer has accepted as well as received the goods sold. 
 But as already stated, there may be a receipt without an 
 acceptance, and an acceptance without an actual receipt. 
 
 The court decided that the case came within the doctrine 
 enunciated in Shindler v. Houston, 5 and that there was no 
 
 1 Acraman v. Morrice, 8 C. B., Johnson, 7 E. & B., 885; Calcutta 
 
 449; Gillett v. Hill, 2 C. & M., 530; Company v. De Mattos, 33 L. J. (Q. 
 
 Campbell v. Musey Docks Comp'y, B.), 214, in Ex. Chamber. 
 14 C. B. (N. S.), 412. 33 H. & N., 484; S. C, 4 id., 
 
 2 Blackburn on Sales, 128: Fra- 823. 
 gano v. Long, 4 B. & C. , 219 ; Rohde * 52 N. Y. , 550, and cases cited. 
 v. Thwaites, 6 id., 388; Aldridge v. 5 1N. Y., 261. 
 
214 SALES. [chap. XIII. 
 
 sufficient act of the parties amounting to a transfer of the 
 possession, of the lumber to the buyer and an acceptance by 
 him. 
 
 § 271. In Clark v. Labreche, 1 the defendant, through the 
 plaintiffs' agent, verbally ordered certain crockery, which 
 was to be imported by the plaintiffs, at Boston, and to be 
 sent to the defendant at Manchester, Eew Hampshire. 
 Nearly two months afterwards, the crockery not having ar- 
 rived, the defendant wrote the plaintiffs not to send it until 
 further orders, as he was having some repairs done in his 
 store. Plaintiffs answered: "We will notify you when 
 goods arrive and won't ship until you are ready." A week 
 after this the defendant personally requested the plaintiff 
 to keep the crockery for him until he directed it to be for- 
 warded. The crockery arrived and was stored in the plaint- 
 iffs' warehouse. 
 
 Six weeks thereafter the plaintiffs' agent called on the 
 defendant and asked him what he was going to do about 
 the crockery. Defendant said he did not want it and they 
 need not send it. On February 16, 1884, a month after 
 this declination, the plaintiffs shipped the crockery by cars 
 to the defendant, and at the same time sent him notice by 
 mail that it was shipped, together with an itemized bill of 
 it, amounting to $245.97. Defendant refused to receive 
 the crockery, and it remained in the railroad warehouse at 
 Manchester. 
 
 Blodgett, J., decided that there was nothing in the case 
 to show as matter of law that the plaintiffs acted as the 
 defendant's agents or bailees in the storage and retention 
 of the goods, or from which an acceptance could be im- 
 plied against him. Although acceptance and receipt may 
 be constructive only, all the cases agree that such accept- 
 ance and receipt must be proved by clear and unequivocal 
 acts on the part of the buyer. 
 
 The test here was whether the acts of the defendant, 
 done or undone, amounted in legal effect to a constructive 
 
 163 K H., 397, decided in July, 1885. See, also, 1 N. E. Reporter, 3. 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 215 
 
 acceptance; for as the question is one of fact, it is only 
 when the facts are not controverted, and afford plain and 
 unequivocal evidence of the parties' intention, that the court 
 will undertake to determine their legal effect. The court 
 said: "Bearing in mind that no act of the seller alone, in 
 however strict conformity to the terms of the contract, will 
 satisfy the statute, and that the mere storage of goods by 
 the seller, or their removal to a place appointed by the 
 buyer, will not imply any acceptance of them by the lat- 
 ter, 1 it is obvious that, upon the facts to which reference 
 has been had, the law does not imply an acceptance." 
 
 § 272. Acceptance cannot legally take place in the ab- 
 sence of a specific agreement, so long as the selier preserves 
 his dominion over the goods so far as to retain his lien for 
 the price, for he thereby prevents the purchaser from ac- 
 cepting and receiving them as his own within the meaning 
 of the statute; 2 and, consequently, if there is nothing indi- % 
 eating a surrender of the seller's lien, any acts of control 
 by the buyer will not be an acceptance. 3 
 
 § 273. Where goods remain in the possession of the seller 
 and still have been received and accepted by the buyer, the 
 seller holds the goods as bailee or under some new con- • 
 tractual relation." It must also be under circumstances 
 which expressly show that the seller has abandoned every 
 claim to the goods. 
 
 §274. In Brewster v. Taylor 4 an oral agreement was 
 made for the purchase of a wagon at a stated price. It ap- 
 peared in the case that the defendant at the time of the 
 agreement told the plaintiff that he wanted a wagon for 
 
 i See Shepherd v. Pressey, 32 N. ed., 187 ; Story on Sales, 276 ; Baldey 
 
 H., 55, and cases there cited; Pres- v. Parker, 2 B. & C, 37, 44. 
 
 cott v. Locke, 51 N. H., 94, 103; 3 Shepherd v. Pressey, 32 N. H., 
 
 Hewes v. Jordan, 39 Md., 473; 17 55; Ousack v. Eobinson, 1 B. & S., 
 
 Am. Eep., 578 ; Eodgers v. Phillips, 299 ; Dodsley v. Varley, 12 A. & E., 
 
 40 N. Y., 531; Maxwell v. Brown, 632. 
 
 39 Me., 98. 4 63 N - Y -> 588 ! 39 N - Y - Super. 
 
 2 Browne on Stat, of Frauds, (J. & S.), 159. 
 § 317 ; Benjamin on Sales, 3d Am. 
 
216 SALES. [chap. XIII. 
 
 two horses, with a pole, and spoke of having a pole made, 
 but they could not agree upon the price. The defendant 
 then stated that he had a pole, and the plaintiff agreed to 
 fit it to the wagon without extra charge, if he could do so 
 without great expense. The pole could not be made to fit 
 the wagon. The fitting of the pole was a material element 
 in the original agreement of sale, and on that point the case 
 mainly turned. The court held that there was no accept- 
 ance of the wagon, notwithstanding it was sent to the de- 
 fendant's place without his knowledge, in an incomplete 
 condition. The defendant had not accepted, nor was any- 
 one authorized by him to accept the wagon, and therefore 
 no sale was consummated within the meaning of the stat- 
 ute, and the case went out of court. 1 
 
 § 275. Under the statute of frauds of California relating 
 to contracts for the sale of " goods, " etc., the words are that 
 the contract shall not be valid unless " the buyer accepts 
 and receives part of the thing sold." 
 
 The action of Jamison v. Simon 3 was for damages for an 
 alleged breach of contract for the sale of a lot of wool, and 
 the above mentioned section of the statute was involved. 
 The contract was oral, nor was any part of the price paid at 
 the time. 
 
 The agreement was that the wool should be delivered at 
 the railroad depot at Merced. The defendant refused to 
 accept the wool because, as alleged and shown by a letter 
 which was put in evidence, the wool was damp. Within a 
 few days after the defendant's refusal to accept the wool, 
 
 i See Cross «. O'Dorinell, 44N.Y., point. Hiokok v. Buell, 2 N. W. 
 
 661; Roberts on Stat, of Frauds, Rep., 512; 51 Iowa, 655;Warfield 
 
 180 ; Story on Sales, §§ 276, 278 ; v. Wisconsin Cranberry Company, 
 
 Dole v. Stimpson, 31 Pick. (Mass.), 19 N. W. Rep., 224; 63 Iowa, 312; 
 
 384; Walrath v. Richie, 5 Lans., Ex parte 'Parter, 9 N. W. Rep., 33; 
 
 362 ; Brand v. Focht, 5 Abb. N. S., 11 Nev., 809 ; Bullock v. Stchergi, 13 
 
 225; affirmed in 3 Keyes (N. Y.), Fed. R., 345; Galloway v. Week, 12 
 
 409; Finney v. Apgar, 31 N. J. L„ N. W. Rep., 10; 54 Wis., 604; Hoff- 
 
 266. man v. King, 58 Wis. , 314 ; 17 N. W. 
 
 2 8 Pacific Rep., 502; Civil Code Rep., 136; Carpenter v. Graham, 42 
 
 of Cal., § 1739, see on the same Mich., 191 ; 3 N. W. Rep,, 974. 
 
CHAP. XIII. J CONCEKNING ACCEPTANCE. 217 
 
 the plaintiffs sold the wool. at Merced, at the highest ob- 
 tainable price, and brought their action to recover the differ- 
 ence between the amount realized by the sale and the 
 amount the wool would have paid at the price fixed by the 
 oral contract with the defendant. 
 
 As acceptance was not proved, the court decided that the 
 action could not be maintained. 
 
 § 276. In the case of United States Eeflector Co. v. Eush- 
 ton, 1 Daly, C. J., says : " If a man goes into a store and selects 
 a particular article of household furniture at a certain price, 
 which he agrees to pay for when it is delivered, and the 
 proof is that the particular article was delivered, it is, 
 in the absence of evidence of any objection on his part, to 
 be assumed that there was both a delivery and acceptance 
 of the article within the meaning of the statute." 
 
 The same reasoning is followed by Willis, J., in Bog Lead 
 Mining Co. v. JMontague, 2 where it is said that, in order to 
 constitute such a final and complete acceptance,- the assent 
 of the buyer should follow, not precede, that of the seller. 
 But where the contract is for a specific ascertained chattel, 
 " the reasoning is altogether different." 
 
 § 277. It is well settled that if the vendee of goods, un- 
 der an agreement otherwise void by the statute of frauds, 
 accepts a delivery of the goods, or some part of them, either 
 when the agreement is made or afterwards, the contract is 
 rendered valid and binding. And the question whether 
 there has been an acceptance of goods is properly to be 
 submitted to the jury to ascertain the fact. An acceptance 
 and receipt of goods, notwithstanding they amount to much 
 more than was contemplated by the order for them, takes 
 the case out of the statute of frauds. 
 
 Thus, take the case of Amson v. Dreher. 3 There the 
 plaintiffs were dealers in wine in New Tork; the defendant 
 
 i 7 Daly E., 410. C), 695 ; McKnight v. Dunlap, 5 N. 
 
 2 10 C. B. N. S. , 481, 489. A sub- Y. , 537. 
 
 sequent delivery validates the sale. 3 35 Wis., 615. 
 Petrie v. Dorwin, 4 Sup. Ct. (T. & 
 
218 SALES. [chap. XIII. 
 
 had a beer garden in Milwaukee. Certain wine was or- 
 dered of the plaintiffs by the defendant. The former 
 claimed that three casks were ordered, and the latter in- 
 sisted that it was only one. Nothing was paid on account. 
 
 These casks of wine were shipped to the defendant by 
 the plaintiffs, and a bill of lading thereof sent to him. The 
 defendant refused to receive the wine, and it was left in 
 store by the carrier. The wine was afterwards sold to pay 
 charges. The testimony showed that while the wine was 
 in Brigham's storehouse the defendant went there with the 
 plaintiff and obtained a bill of the storage charges, but 
 finding that he did not have money enough with him to 
 pay the charges, promised to call again, pay the charges 
 and take the wine. 
 
 Mr. Brigham testified that while the wine was at his 
 place, two parties (and he thought the defendant was one 
 of them) came there, talked about the charges, and, as he 
 thought, went into the cellar and looked at the wine. ' This 
 testimony being in, the defendant moved for a nonsuit, on 
 the grounds that more wine was sent than ordered, and 
 that the contract was void within the statute of frauds. 
 
 The defendant testified that he never agreed to receive 
 the wine, and never went to Brigham's with either of the 
 plaintiffs. 
 
 The part of the charge to the jury to which exception 
 was taken was the following: "If it was understood be- 
 tween the parties that the delivery of the wine in the cellar 
 of Mr. Brigham was to be a delivery of it, and that the de- 
 fendant was to take it from there, that would constitute a 
 nexo agreement^ 
 
 The court instructed the jury that the original contract 
 was within the statute of frauds and therefore void. 
 
 Judgment was in favor of the plaintiffs, and the defend- 
 ant appealed. 
 
 The supreme court, Lyon, J., held that there was no error 
 in the instruction by the circuit judge, and the judgment 
 was affirmed. 
 
CHAP. XIII.] CONCEENING ACCEPTANCE. 219 
 
 The circumstance that a bill of lading was sent to and 
 retained by the defendant is of some weight, although not 
 referred to by the court. As acceptance must be evidenced 
 by acts, it would seem that the above case fell pretty near 
 the line. 
 
 § 278. "Where A. at Syracuse, N". Y., entered into a con- 
 tract with S. S. & Co., doing business in Minnesota, to man- 
 ufacture certain boilers at stated prices, and deliver them on 
 the cars at Syracuse by May 1, 1881, and to be paid for in 
 notes on six, nine, twelve, fifteen and eighteen months, to 
 be due at the date of each shipment, or at an average date 
 to be agreed upon ; and a large number of the boilers were 
 shipped before the specified time and some after that time, 
 duly marked with the name of the vendees, and a shipping 
 bill delivered to the railroad company by which the boilers 
 were shipped, and an invoice and bill of lading sent to the 
 vendees ; but on the following day, after the car was locked 
 and made up in a train, the defendant took possession of 
 said boilers under an attachment against S. S. & Co., and 
 the plaintiff informed S. S. & Co. by telegraph of the levy, 
 and S. S. at once notified the plaintiff that as the boilers 
 were not delivered according to contract they would not 
 receive them, and the plaintiff thereupon commenced this 
 action by replevin and retook the boilers and shipped them 
 to his agent at Chicago, who afterwards sold them to S. S. 
 & Co. under a new agreement, the court held that in the 
 referee finding for the plaintiff he committed no error. For 
 that S. S. & Co. had not subscribed any written contract, 
 nor paid any part of the purchase money, nor was the car- 
 rier made the agent of S. S. & Co. to accept the boilers. 
 But that if the bill of lading had been received by S. S. & 
 Co., an acceptance might have been inferred as evidence of 
 intent on the part of the vendor to deliver and the vendee 
 to receive and accept; and as before its receipt the shipment 
 was countermanded, that it could not be held that the title 
 had passed out of the vendor until some evidence was 
 shown of an acceptance by the vendee. The acceptance of 
 
220 SALES. [chap. XIII. 
 
 the bill of lading by the vendee would have changed the 
 title, but it had not taken place. That there was not .such 
 a completed delivery or acceptance at the time the attach- 
 ment was levied as to work a transfer of title from the 
 vendor to the vendee. 1 
 
 The judgment was affirmed. 
 
 § 279. The case of Scotten v. Sutter 2 is interesting. In 
 assumpsit it was claimed by Sutter that Scotten had bar- 
 gained with him for ten thousand " Ranger " cigars at $25 
 per thousand, and five thousand " Hiawathas " at $50 per 
 thousand, part of which he afterwards refused to accept 
 and pay for. 
 
 The evidence tended to show that the plaintiff had made 
 the same brands before for the defendant, and no fault had 
 ,been found with them; that four thousand of them were 
 made, labeled with the defendant's labels, and sent to de- 
 fendant's store, but were not then received, as the defendant 
 was taking stock ; that a large portion of the cigars were 
 subsequently delivered, but the defendant declined to re- 
 ceive any more. 
 
 The defendant's evidence tended to show that no order 
 was given for the cigars; that when a lot of the cigars 
 were brought to the place of the defendant, they were sent 
 back; that afterwards, upon being urged by the plaintiff, 
 defendant consented to take the cigars as fast as he could 
 sell them, and that the cigars taken were purchased under 
 that agreement. 
 
 The court below charged that the contract for the cigars 
 was invalid because not in writing, unless there was an ac- 
 ceptance by the defendant of part of the goods sold, or a 
 payment by the defendant of the purchase money, or some 
 of it, and that the sending by the defendant at three sev- 
 eral times for portions of the cigars, and paying for them, 
 
 iRodgers v. Phillips, 40 N. Y., 188; Baily v. Hudson River R. R. 
 
 519; Krulder v. Ellison, 47 N. Y., Co., 49 N. Y., 70 — distinguished. 
 
 36; Caulkins v. Hellman, 47 id., 2 37 Mich., 526. 
 449; Thompson v. Fargo, 49 id., 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 221 
 
 could not under the circumstances be construed as an ac- 
 ceptance of any portion of tlie goods under the contract. 
 The jury found for the plaintiff. The defendant brought 
 error. 
 
 Cooley, 0. J., said : " The principal question on this record 
 is whether the judge was correct in leaving it to the jury to 
 find an acceptance of the cigars from what took place at 
 the time the witness Compt took to the place of business of 
 defendant the four thousand cigars in a hand-cart." 
 
 After reciting the fact of the four thousand cigars hav- 
 ing been taken to the defendant, and what was then said 
 by the defendant to Compt, who took the cigars to him, the 
 learned judge says : " Now if the first promise was invalid 
 because not in writing, the second promise, which was also 
 not in writing, could be no better ; it would be invalid on 
 the same grounds precisely as the first." 
 
 After a further reviewal of the evidence, and after refer- 
 ring to the English and American cases touching the points 
 involved in the case, the court decided that the judgment 
 should be reversed and a new trial ordered. 1 
 
 § 280. It appeared in Hopton v. McCarthy 2 that the de- 
 fendant, an Irish trader, gave a verbal order for goods to 
 the plaintiff, who carried on business in England, and the 
 goods were sent by the route agreed upon between them. 
 The invoice, sent at the same time, was at once returned 
 with a letter stating that it did not correspond with the 
 agreement, and notifying his refusal to take the goods. 
 Upon these facts the court held that there was no evidence 
 of any receipt and acceptance of the goods by the defendant, 
 and that an action against him for the price would not lie. 
 
 In some cases it has been held that an acceptance by an 
 agent is sufficient to satisfy the statute of frauds. 3 
 
 i Rohde v. Thwaites, 6 B. & C, 2 10 Ir. L. R„ 266. 
 
 388 ; Turley v. Bates, 2 H. & C. . 200 ; 3 Barkley v. Rensselaer, etc. , Rail- 
 
 Lingham v. Eggleston, 27 Mich., road Company, 71 N. Y., 205; Silver 
 
 324: Wilkinson v. Holiday, 33 id., v. Bowne, 55 N. Y., 659. 
 386; Goddard v. Binney, 115 Mass., 
 450. 
 
222 SALES. [chap. XIII. 
 
 But where an agent took ■ possession of goods without 
 authority to make a contract nor to accept, it was held to be 
 not an acceptance by the vendee. 1 
 
 § 281. As illustrated by the foregoing cases and author- 
 ities the following deductions may reasonably be drawn: 
 
 That to constitute an acceptance to satisfy the statute of 
 frauds, the intention to perform the whole contract must so 
 clearly appear as to entitle the purchaser to assert his owner- 
 ship. 
 
 That an acceptance and receipt of a part of the goods 
 sold to satisfy the statute must be by the bu} T er himself, or 
 by some one duly authorized to accept in his behalf. 
 
 That where the buyer merely agrees to take all the goods 
 of a particular kind and quality, which are not at the time 
 selected or set apart, but form part of a large lot from which 
 they are afterwards to be selected by the seller, and are set 
 apart and marked by the seller, such acts do not constitute 
 an acceptance on the part of the buyer. 
 
 That the receipt of a part of such goods by an express- 
 man not authorized to accept will not bind the buyer. 
 
 That the acceptance by the buyer of the part delivered ' 
 by an expressman will not constitute an acceptance on the 
 part of the buyer of the whole unless such intention clearly 
 appear. 2 
 
 § 282. It seems to be a reasonable and universal rule that 
 the vendee has the right, in all cases, to inspect goods pur- 
 chased after their delivery, to see whether they are in ac- 
 cordance with the order. But if the vendee sell the goods 
 without inspecting them, that is held to be tantamount to 
 an acceptance of them. 3 
 
 On the other hand, the act of the vendee insuring the 
 goods does not amount to an acceptance, if, within a rea- 
 
 iWade v. N. T. & Oswego Mid- C. Q. B. (O. S.), 196; Downer v. 
 
 land Railroad, 52 N. Y., 627. Thompson, 2 Hill, 137. 
 
 2 See Remick v. Sandford, 120 3 Hill v. McDonald, 17 Wis., 97; 
 
 Mass., 309; Marsh v. Hyde, 3 Gray, Fletcher v. Ingram, 46 Wis., 191 ; 
 
 331, 333; Grover v. Cameron, 6 U. Hoffman v. King, 58 Wis., 314. 
 
CHAP. XIII.] CONCERNING ACCEPTANCE. 223 
 
 sonable time, he reject them as not being according to 
 order. 1 
 
 Lord Tenterden, in an important case, decided that the 
 defendant is bound to object to receive the goods within 
 a reasonable time; and that it is a question for the jury 
 whether he did so. 2 
 
 § 282a. The principle also runs through all the cases, 
 that the buyer has a reasonable time within which to accept 
 goods which have been delivered. He should be as prompt 
 as, under all the circumstances of the case, he can be. 3 
 Usage, in respect to the goods delivered, may well govern 
 as to time. 1 
 
 Where delay has not worked an acceptance, see note ; 5 
 where delay has been held tantamount to acceptance, see 
 note. 6 
 
 And it should be steadily borne in mind that the accept- 
 ance and receipt contemplated by the statute of frauds and 
 as adjudged by the cases must always be governed by the 
 circumstances surrounding the transaction, as to whether 
 there has been such acceptance and receipt. And that in 
 general these facts are to be passed upon by the jury. 
 
 1 Bacon v. Eccles, 43 Wis., 227. S., 445; Currie v. Anderson, 2 E. 
 
 2 Coleman v. Gibson, 1 Moody & & E., 599. 
 
 Rob., 168; Gordon v. Simonton, 10 * Coleman v. Gibson, 1 M. & 
 
 Fla., 179, as to meaning of "rea- Rob., 169. 
 
 sonable time." 5 Rickard v. Moore, 38 L. T. Rep. 
 
 3 Bowes v. Pontifex, 3F.&R, N. S., 841 ; Nicholls v. Plume, 1 C. 
 743; Curtis v. Pugh, 10 A. & Ell. & P., 272; Cunliffe v. Harrison, 6 
 N. S., 113; Treadwell v. Reynolds, Exch., 905. 
 
 39 Conn., 34; Gaslin v. Pinney, 24 6 Baylis v. Lundy, 4 L. T. N. S., 
 Minn., 323; Spencer v. Hale, 30 176 (K. B.); O'Brien v. Barker, 4 
 Vt., 317; Smith v. Hudson, 6 B. & New Zeal. Jur. N. S., 64. 
 
CHAPTER XIY. 
 
 CONCERNING ACCEPTANCE AND RECEIPT— OF RECEIPT AND 
 
 DELIVERY. 
 
 § 283. Rule under the common law and under the statute of frauds 
 as to receipt. 
 384. Meaning of "receipt;" delivery for a special purpose; inten- 
 tion of the parties. 
 283. When receipt may indicate acceptance. 
 
 286. Delivery the correlative of receipt, although not used in the 
 
 statute. 
 
 287. Actual receipt must be intended by the parties to be complete. 
 
 288. What will constitute actual receipt; Gray v. Sullivan. 
 
 289. Case of contemplated delivery. 
 
 290. A delivery without acceptance; the case of Kerhof v. Atlas 
 
 Paper Company. 
 
 291. Where goods are delivered at a place designated by the vendee. 
 
 292. Example ; Caulkins v. Hellman ; an act as part of the res gestae. 
 
 293. Another example; where there was a partial delivery; Van 
 
 Wroet v. Albany & Susquehanna Railroad. 
 
 294. The same subject continued ; an Arkansas case. 
 
 295. The same subject ; a Colorado case. 
 
 296. Where part of the goods are delivered and the vendee waives 
 
 the condition that the whole be delivered at one time, it is a 
 complete delivery. 
 
 297. The same subject continued. 
 
 298. Usage may govern as to delivery. 
 
 299. Goods must be set apart for identification to constitute a de- 
 livery. 
 
 300. A person may make delivery to his bailee without taking the 
 
 property into his awn possession for the purpose. 
 
 301. A case of resale ; Blanchard v. Trim. 
 
 302. As to the place of delivery : rule where no place is designated. 
 308. Where goods are delivered at place designated, partly paid 
 
 for, and destroyed by fire, sale complete ; Mason v. H. Whit- 
 beck Company. 
 
 304. In an executory contract, where the price is paid, title passes. 
 
 305. Contract of purchase without change of possession, invalid; 
 
 Kirby v. Johnson. 
 
CHAP. XIV.] ACCEPTANCE RECEIPT AND DELIVERY. 225 
 
 § 306. "Where there is neither actual nor symbolical delivery, contract 
 void ; Bailey v. Ogdea 
 
 307. Simple act of marking goods not sufficient to constitute re- 
 
 ceipt. 
 
 308. Flexibility of the statute of frauds. 
 
 § 283. Previous to the statute of frauds, delivery, or its 
 correlative, receipt, was not an important quality in the con- 
 stitution of contracts for the sale of goods. 
 
 The only essentials to the validity of a sale at common 
 law were, a proper subject, a price or consideration, and the 
 mutual consent of the contracting parties ; where these con- 
 curred the sale was deemed complete. 
 
 And where nothing remained to be done but that the 
 buyer should pay the price and take the same thing, the 
 property passed to the buyer, and with it the risk of loss by 
 fire or any other accident. Appropriation was equivalent 
 to delivery, and assent of the buyer to take the goods was 
 equivalent to his acceptance of them. 1 
 
 To constitute an " actual receipt " as contemplated by the 
 statute, the possession of the goods must be parted with, so 
 as to deprive the vendor of every lien thereon. The deliv- 
 ery must be so intended by the vendor, and must be unre- 
 strained and voluntary. 
 
 Delivery, in some cases, has been held to include as well 
 the act of the seller in transferring the goods, as of the 
 buyer in receiving them ; and this interpretation seems to 
 be reasonable. 2 
 
 § 284. A reasonable interpretation of the meaning of 
 the word " receipt," as adjudged by the decisions, is the act 
 of taking possession of the goods sold. When the seller 
 
 1 Dixon v. Yates, 5 B. & Ad., 313. language of the statute of frauds 
 
 2 Hilliard on Sales, 135, and cases to be unequivocal, and that it de- 
 cited; Chitty on Contr., 390, and mands the action of both parties, 
 cases cited ; Stone v. Browning, 68 for the reason that acceptance iin- 
 N. Y., 598; Barkalow v. Pfieffer, plies delivery, and there can be no 
 38 Ind., 214; Bailey v. Epperly, 2 complete delivery -without accept- 
 ed., 85. Gardner, J., in Shindler v. ance. 
 
 Houston, 1 N. Y., 261, declares the 
 15 
 
226 SALES. [chap. XIV. 
 
 gives to the buyer absolute control of the goods, and the 
 buyer accepts such control, he has actually received them. 
 Such receipt is often evidence of an acceptance, but it is not 
 the same thing. Indeed, the receipt by the buyer may be 
 and often is for the express purpose of seeing whether he 
 will accept or not. Such question, in general, is to be deter- 
 mined upon all the existing facts in the case. 1 
 
 The court, Andrews, J., in the court of appeals of 'New 
 York, in Cornell v. Clark, 2 asserted the rule to be substan- 
 tially as follows: If the delivery is for a special purpose, as 
 where the property is put into the custody of the vendee to 
 meet some term of the contract not inconsistent with the 
 retention of title by the vendor, such a qualified delivery 
 will not pass the title contrary to the intention. In that 
 case the delivery was for the express purpose of inspection 
 and selection. 
 
 § 285. When the act of receiving goods clearly indicates 
 that the purchaser has accepted them, a contract otherwise 
 void becomes valid and obligatory under the statute of 
 frauds. 
 
 This general principle has been adhered to since the im- 
 portant and early case of Tempest v. Fitzgerald, 3 both in 
 England and in this country. The same doctrine was ap- 
 proved and applied by the New York court of appeals, in 
 the case of Shindler v. Houston. 4 There, Gardner J., said 
 
 1 Brands. Focht, 3Keyes(N. Y.), Williams, 5 Allen (Mass). R., 1; 
 409 ; 30 How. Pr. , 31 3 ; Samuels v. Presoott v. Locke, 51 N . H. , 94, 100 ; 
 Gorham, 5 Cal., 226; Garbet v. Gilman v. Hill, 36 N. H., 311; 
 Belknap, 1 id., 399; Quintard v. Shepherd v. Pressey, 32 N. H., 49; 
 Bacon, 99 Mass., 185; Rodgers v. Hewes v. Jordan, 39 Md., 408; S. 
 Phillips, 40 N. T., 519; Blackburn C, 17 Am. Rep., 578; Smith v. 
 on Sales, 106. Bouck, 33 Wis., 19; Brabin v. 
 
 2 5N. Y. S. Rep., 772. Hyde, 32 N. Y, 519; Duplex 
 »3 Barn. & Aid., 680. See, also, Safety Boiler Company v. McGin- 
 
 Carter v. Toussaint, 5 id., 855; ness, 64 How. Pr. R., 99; Edan v. 
 
 Baldeyu. Parker, 2 Barn. & C, 37; Dudfield, 1 Q. B., 302; Mason?;. 
 
 Lilly white v. Devereaux, 15 Mees. Whitbeck Co., 35 Wis., 164; Am- 
 
 & Wels., 285; Browne on Stat, of son v. Dreher, 35 id., 615; Cottrell 
 
 Fr., 318. v. Stevens, 10 id., 422. 
 '1S.T, (1 Com.), 261 ; Dewey v. 
 
CHAP. XIV.] ACCEPTANCE BECEIPT AND DELIVERY. 227 
 
 the delivery must be with the intention of vesting the right 
 of possession in the vendee, and there must be an actual ac- 
 ceptance by the vendee with the intention of taking posses- 
 sion of the goods as owner. 
 
 All this must be independent of the proof of the contract. 
 
 In a well considered case it was held that where, under a 
 verbal contract of sale of goods in value over $50, a delivery 
 is made to one of several joint purchasers and accepted by 
 him, the contract is rendered binding as to all. 1 
 
 § 286. In cases where the question has arisen as to the 
 receipt necessary to validate a parol contract for the sale of 
 goods, the judges have almost uniformly used the word de- 
 livery as the correlative of that receipt. This construction 
 no doubt has occasioned some confusion in the mind of the 
 student. For delivery has been used not only to indicate 
 the passing of the property in the thing, but to denote the 
 transfer of the actual title as well. 
 
 While the word delivery is not used in the statute of 
 frauds, "acceptance and actual receipt" of part of the 
 goods sold at least are required, which are acts of the buyer. 
 
 For different phases of the question which have arisen 
 see note. 2 
 
 In Wilcox v. Jackson, 3 Beck, 0. J., interpreting this pro- 
 vision of the statute of frauds, and in approving the case of 
 Cook v. Mann, 4 in effect said that the vendee must take the 
 actual possession, and the possession must be open, noto- 
 rious and unequivocal, such as to apprise-the community, or 
 those who are accustomed to deal with the party, that the 
 
 1 Smith v. Milliken, 7 Lansing, Lloyd v. Wright, 25 Ga„ 215; Pul- 
 Sup. Ct. (N. Y.), 336. lian v. "Wright, 20 id., 574; Gibbs v. 
 
 2 Boardman v. Spooner, 13 Allen, Benjamin, 13 Am. L. Reg. (N. S.), 
 357; Morse v. Sherman, 106 Mass., 93; Edwards v. Grand Trunk Rail- 
 433; Mathieson & Weichers Re- way Company, 54 Me., 105; Law- 
 flector Company v. McMahon, 9 rence v. Chase, 54 Me., 196. 
 Vroom (N. J.), 536; Upton v. Stur- 3 7 Cal., 526. 
 
 bridge Cotton Mills, 111 Mass. , 453 ; * 6 Cal. , 21 ; McCraw v. Welch, 2 
 Hausman v. Nye, 62 Ind., 485; Cal., 291. 
 
228 SALES. [chap. XIV. 
 
 goods have changed hands, and that the title has passed ou^ 
 of the seller into the buyer. 
 
 The possession must be exclusive of the vendor ; a con- 
 current or joint possession is not admissible. 
 
 § 287. In general the receipt of goods is established when 
 the purchaser assumes control over them with the acquies- 
 cence of the seller. 
 
 In Dehority v. Paxson 1 this question was directly in- 
 volved. 
 
 The language of the statute of frauds of Indiana reads : 
 " unless the purchaser shall receive part of such property." 
 
 "What the statute requires, said the court, is an act of the 
 purchaser, that he shall receive. This involves deliver, but 
 it is not intended that the seller, by his act of delivery, 
 shall be able to render the contract enforceable against the 
 purchaser without his receiving the goods, or some part 
 thereof, as his property under the contract. 
 
 The seller must part with his control with the purpose of 
 vesting the right of property in the buyer, who must receive 
 the same with such intent on his part. Such receipt may 
 be subsequent to the agreement. 2 
 
 The receipt by the purchaser of a part of the goods, 
 which would involve the delivery of a part, would satisfy 
 the statute of frauds. 
 
 In Scott v. Eastern Counties Railway Company, 3 it was 
 clearly held that if an order be given for goods, some of 
 which are ready-made at the time of the contract, and the 
 rest are to be manufactured according to order, and the 
 goods which are ready-made are afterwards delivered and 
 paid for, the acceptance of them is a part acceptance of the 
 whole, to satisfy the seventeenth section of the statute of 
 frauds, as the whole forms but one entire contract. 
 
 § 288. As to what will constitute delivery and actual 
 
 197 Ind., 256. 312 M. & W., 33; 13 L. J. Ex., 
 
 2 McCarthy v. Nash, 14 Minn., 14; 7 Jur., 996. 
 127; Gaslin v. Pinney, 24 id., 322. 
 
CHAP. XIV.] ACCEPTANCE RECEIPT AND DELIVERY. 229 
 
 change of possession under the statute of frauds was also 
 passed upon in the cases of Estey v. Cooke, 1 and Twist v. 
 Kelly: 2 
 
 The case of Gray v. Sullivan 3 also presents the same gen- 
 eral question. The property there involved consisted of 
 animals, wagons and harness. It was contended on the 
 part of the appellants that the evidence did not show such 
 a change of possession as to satisfy the statute of frauds. 
 Hawley, C. J., after stating the facts proved at the trial 
 and declaring that they are not analogous to the evidence 
 offered in Hurlburd v. Bogardus, 4 nor similar to the case of 
 Doak v. Brubaker, 5 declares that there was actual posses- 
 sion by the vendee; that it was "open and unequivocal, 
 substantial and continuous," and was not taken to be sur- 
 rendered back, if the respondent's testimony was true. The 
 judgment in favor of the plaintiff and the order appealed 
 from were affirmed. Beatty, J., dissented from the judg- 
 ment of the court. He held that two things must concur 
 to give validity to a sale, namely, an actual change of pos- 
 session, and that such change must be continued. "Sow, 
 if we know what, under any particular state of circum- 
 stances, is essential to be done in order to effect the actual 
 change of possession required, we know equally well that 
 the continuity of such actual change is at once destroyed if 
 everything necessary to effect it is undone immediately 
 afterwards." 
 
 The learned justice cites the case of Doak v. Brubaker, 
 supra, as analogous, and holds that the statute aims to se- 
 cure " probity and fair dealing." 
 
 The case is a good illustration of the necessity of the law 
 and the wisdom of enforcing it. " Construed as it has been 
 in this case," said the justice, " it is reduced, in my opinion, 
 
 112 Nev., 276. Clark, 2 id., 243; Lawrence v. 
 
 211 Nev., 377. Burnham, 4 Nev., 361. 
 
 310 Nev., 416. See, also, Cluteu. 4 10 Cal., 519. 
 
 Steele, 6 id., 335, 215; Conway » 1 Nev., 218, 232. 
 V. Edwards, 2 id. , 190 ; Carpenter v. 
 
23<f SALES. [chap. XIV. 
 
 to a state in which there will be none so poor to do it rev- 
 erence; no capacity too mean and no artifice too shallow 
 for evading it." He thought the judgment should be re- 
 versed. 
 
 The court in Conway v. Edwards, supra, says that noth- 
 ing generally can have a more direct tendency to show a 
 change of possession than the control and management of 
 the property or acts of ownership exercised bv the vendee 
 over it. 
 
 § 289. In Lownsdale v. Hunsaker ' it appeared that the 
 plaintiff was owner of a band of cattle and horses then kept 
 and running in Klikitat county, Washington territory. 
 
 A contract in writing was entered into whereby the plaint- 
 iff agreed to sell to the defendant the said horses and cattle, 
 delivered as " soon as practicable after the navigation of 
 the Columbia river is open," etc. It was also agreed that, 
 if any of the cattle or horses should be dead or missing at 
 said time, the amount equivalent in value would be taken 
 out of the aggregate purchase price. 
 
 The court, Boise, J., held, with the court below, that the 
 contract was simply " a contract for a sale," and that the 
 property "did not pass out of Lownsdale;" and further, 
 that by the contract there was no delivery, but a contem- 
 plated delivery in the future. 
 
 Judgment in favor of the defendant was affirmed. Clearly, 
 the essential elements of a subsisting and binding contract 
 were wanting. 
 
 § 290. The case of Kerhof v. Atlas Paper Company i is 
 the most recent one on the subject of delivery but where 
 there was no acceptance under the statute of frauds. The 
 contract was a parol executory one, for the sale of wood 
 for a price exceeding $50. As found by the jury, the plaint- 
 iff cut, hauled and banked, at the place designated, on the 
 Fox river, two hundred and thirty cords of dead wood of 
 the quality specified in the contract; that after two hun- 
 
 !2 Oreg., 101. See, also, Dooley 2 32 Northwestern E., 766. 
 v. Eilbert, 47 Mich., 615. 
 
CHAP. XIV.] ACCEPTANCE KEOEIPT AND DELIVEEY. 231 
 
 dred cords of the wood had been banked the defendant 
 paid $250 towards the wood, but did not then know the 
 quality of the wood which had been banked. These facts 
 were the result of the special findings of the jury. Noth- 
 ing is said as to acceptance or non-acceptance of the wood 
 by the defendant. 
 
 The court, Cole, 0. J., said: "Under the circumstances it 
 was essential for the plaintiff to prove, and for the jury to 
 find, an acceptance to take the case out of the statute. 
 Every special verdict should submit all material contro- 
 verted facts." 1 
 
 Unless the contract was fully executed by delivery and 
 acceptance, it was void under the "Wisconsin statute of 
 frauds. 2 
 
 Only by acceptance can the written memorandum be dis- 
 pensed with. The learned court further says : "Upon the 
 special verdict, then, the plaintiff was clearly not entitled 
 to have judgment for the value of the wood, since no ac- 
 ceptance was shown so as to complete the sale. It cannot 
 well be said that the payment of the $250 some weeks after 
 the contract was made would have the effect to validate the 
 agreement, or take the case out of the statute. 
 
 " The earnest money to bind the bargain must be paid 'at 
 the time ' the contract is entered into." 
 
 The judgment of the circuit court, dismissing the com- 
 plaint upon its merits, was affirmed. 
 
 § 291. Hanson v. Roter 3 presents the question of an oral 
 contract for the sale and delivery of a quantity of logs. The 
 plaintiff testified that, under the agreement made with the 
 defendants, he " was to put the logs by the railway track 
 which was by my place;" that Eoter agreed to scale the 
 logs gotten out every month, and pay for them, but he did 
 not do so. 
 
 The plaintiff deposited a lot of logs at the place desig- 
 
 1 Pratt v. Peck, 65 Wis., 463; 27 3 64 Wis., 622; Pike v. Vaughn, 
 N. W. Rep., 180. 39 Wis., 499; Hardell v. MoClure, 2 
 
 2R. S., § 2308. Pin., 289 (1 Chand., 271). 
 
232 SALES. [CHAP. XIV. 
 
 nated, but the defendants refused to receive them, as not 
 merchantable. The defendants contended that the contract 
 ■was within the statute of frauds, and void. The court said: 
 " The objection seems to us insuperable." The attempt to 
 avoid the force of the objection by saying that, when the 
 plaintiff delivered the logs at the place agreed upon, the title 
 passed to the defendants, was not sustained by proof. 
 
 It was competent for the parties to so agree; 1 but the 
 court held there was " no evidence of such a contract be- 
 ing made;" nor did the plaintiff swear that such was the 
 contract; that it could not with propriety be said that the 
 contract was for special skill and labor, as in Meincke v. 
 Falk. 2 
 
 The judgment in favor of the plaintiff was reversed, and 
 the cause remanded with directions to dismiss the com- 
 plaint. 
 
 § 292. In Caulkins v. Hellman 3 there was a verbal con- 
 tract of sale of certain wine, which was delivered as directed 
 at Blood's Station. 
 
 The court below instructed the jury that, if the wine was 
 actually delivered in pursuance of the verbal contract, the 
 contract might be enforced. 
 
 Such instruction would have been good law if the con- 
 tract had been in writing instead of being verbal; but 
 clearly, as the contract was void by the statute of frauds, 
 and as in such case there must not only be an actual receipt 
 of the goods by the vendee, but an acceptance of them, to 
 render the vendee liable for the price, and as these elements 
 were wanting, the delivery made at Blood's Station did not ■ 
 satisfy nor take the case out of the statute of frauds. 
 
 Quite identical questions as were involved in the above 
 case were presented in Norman v. Phillips, 4 but the verdict 
 for the plaintiff in that case rested upon the additional fact 
 
 » Morrow v. Reed, 30 Wis., 81. York & Oswego Midland Railroad 
 
 2 55 Wis., 427. Co., 52 N. Y., 627. 
 
 847 N. Y., 449; Wade v. New M4 Meeson & Wellsby, 277. 
 
CHAP. XIV.] ACCEPTANCE RECEIPT AND DELIVERY. 233 
 
 that an invoice was duly sent to the vendee and retained by 
 him for several weeks. 
 
 Rapallo, J., in Caulkins v. Hellman, thought the trial 
 judge erred in excluding evidence of the contents of a tele- 
 gram which the defendant attempted to send to the plaint- 
 iffs immediately upon the receipt of the wine. That " if, as 
 was offered to be shown, it stated that he declined to ac- 
 cept the wine, it was material as part of the res gestce. A 
 bona fide attempt, immediately on receipt and examination 
 of the wine, to communicate such a message, was an act on 
 his part explaining and qualifying his conduct in receiving 
 the wine into his store and allowing it to remain there. 
 And even though the message never reached the plaintiffs, 
 it bore upon the question of acceptance by the defendant." 
 
 The bona fide attempt by the defendant to communicate 
 his rejection of the goods was clearly material and compe- 
 tent to rebut the presumption of an acceptance arising from 
 the retention of the goods. 1 
 
 The judgment in favor of the plaintiff was reversed. 
 
 § 293. Van Woert v. Albany & Susquehanna R. R. Co. 2 
 was an action for damages for refusal to fulfill a contract 
 for the purchase of one thousand cords of wood. 
 
 In May, 1869, a parol contract was made, whereby the 
 defendant agreed to purchase and pay for such quantity of 
 wood as the plaintiff could cut and deliver, at $3.50 per 
 cord for hard wood and $3 per cord for soft wood. Within 
 a year thereafter three hundred and twenty-two and one- 
 half cords had been delivered and paid for. The defendant 
 then refused to pay for any more, even for the nineteen 
 cords which had been drawn and piled by the side of defend- 
 ant's road. 
 
 On the trial below the court charged the jury that the 
 contract testified to was void under the statute of frauds ; 
 but if they found that such a contract was made, and the 
 
 1 But see Kibble v. Gough, 38 L. 2 67 N. Y., 539. 
 T. N. S., 204, and Page v. Morgan, 
 33 Weekly Rep., 793. 
 
234 sales. [chap. xrv. 
 
 wood subsequently delivered was accepted, such delivery 
 and acceptance took the contract out of the statute and 
 made it valid;' and if the parties understood when the last 
 portion of wood was delivered, or when it was paid for, that 
 there was such a contract, and that it was to continue there- 
 after and be fulfilled by the delivery of the wood at a sub- 
 sequent time, the plaintiff could recover damages for the 
 refusal of the defendant to accept the wood offered by the 
 plaintiff, to be delivered in the winter of 1870 and 1871. 
 From this charge the defendant excepted and appealed. 
 
 Earl, J., saj 7 s : " We will assume, as most favorable to the 
 appellant, that that was not a contract for work and labor, 
 but one for the sale of the wood, and as there was no com- 
 pliance with the statute of frauds, that it was void when 
 made. 
 
 " There was subsequently a delivery of wood, and the 
 judge submitted the evidence to the jury for them to 
 find whether such delivery was upon and in pursuance 
 of the prior contract, and as there was sufficient evidence 
 authorizing such a finding, we must assume that they found 
 that the subsequent delivery was upon the contract. Hence 
 such delivery answered the requirements of the statute of 
 frauds and made the contract of sale valid. 1 
 
 " This is not the case of a contract not to be performed 
 within a year. It was not such that by its terms it could 
 not be performed within a year, but it might have been, 
 and therefore was not void. 2 
 
 " This was a contract binding upon both parties after the 
 partial delivery. The plaintiff was bound to cut and de- 
 liver as much as he could up to one thousand cords, and 
 was bound to use reasonable efforts to perform his part of 
 the contract; and the defendant was bound to take and 
 
 1 McKnight v. Dunlap, 5 N. Y., 2 Lockwood v. Barnes, 3 Hill, 128; 
 537; Thompson v. Mink, 2 Keyes, Baptist Church v. Ins. Co., 19 N. 
 86; Bordwell v. O'Keefe, 32 Barb., Y., 307. 
 434; Townsend v. Hargraves, 118 
 Mass., 336. 
 
CHAP. XIV.] ACCEPTANCE EEOEIPT AND DELIVERY. 235 
 
 pay for the wood thus delivered. Hence there was mutual- 
 ity in the contract. 
 
 " The contract, as proved, was not so indefinite as to be 
 void. There was no particular time mentioned within 
 which the wood was all to be delivered. But the law in 
 such a case gives the vendor a reasonable time, and that is" 
 sufficiently definite as to time. The quantity was limited 
 to one thousand cords, and the vendor was obliged to de- 
 liver all or so much of this as he could, and that was suffi- 
 ciently definite and certain as to quantity." The judgment 
 of the general term was affirmed. 
 
 § 294. Swegart v. McGee, 1 an Arkansas case, was also 
 where a part of the goods had been delivered. 
 
 There the plaintiff bargained to sell to the defendant 
 three hundred bushels of corn at $1 per bushel, to be paid 
 for on delivery, at the cribs of the defendant ; one hundred 
 bushels to be delivered in March, and two hundred bushels 
 within one month thereafter; one hundred bushels were 
 delivered at the time of the sale, and paid for at the price 
 agreed. Afterwards the plaintiff demanded the two hun- • 
 dred bushels, but the defendant refused to deliver them. 
 Damages were claimed for their non-delivery. Judgment 
 was for the defendant. On appeal, English, 0. J., said: 
 " The contract for the sale and delivery of the three hun- 
 dred bushels of corn was manifestly an entire and not a 
 separate contract. 2 The delivery of part of the corn, and 
 payment thereof, took the contract out of the statute of 
 frauds. The plaintiff was entitled to recover damages for 
 the non-delivery of the residue of the corn." Judgment 
 was reversed. 
 
 The statute of frauds of that state provides that no con- 
 tract for the sale of goods, etc., shall be binding, unless the 
 purchaser shall accept a part of the goods sold and actually 
 receive the same. As this was an entire contract and one- 
 
 1 19 Aik., 473. 2Harteau V.Gardner, 51 N. Y., 
 
 678. 
 
236 SALES. [chap. XIV. 
 
 third of the corn was delivered, the contract came within 
 the operation of the statute and bound the defendant. 
 
 "While the contract is entire a partial delivery will vali- 
 date the contract as to the whole. 1 
 
 § 295. The case of Sloan Saw Mill and Lumber Company 
 v. Guttshall 2 presents the question as to part performance 
 of a contract, and as to what constitutes a sale and delivery. 
 
 There the defendant bargained for four hundred thousand 
 feet of lumber, to be sawed by the plaintiff and sold to the 
 defendant, as the same should average, without separating 
 the clear from the common lumber, at $14 per thousand ; 
 the lumber to be delivered as fast as sawed at the saw-mill of 
 plaintiff, in El Paso county ; to be paid for by the thousand 
 feet as fast as delivered, the plaintiff promising to accept 
 the same. 
 
 Two hundred and seventy-four thousand feet of said lum- 
 ber were delivered and accepted on July 28, 1873, but the 
 defendant refused to pay for the same. 
 
 On July 28, and August 4, the balance of said lumber 
 was tendered, but the defendant refused to accept it. The 
 plaintiff resold the balance of said lumber August 8; the de- 
 ficiency on said sale was $256, which the defendant refused 
 to pay. 
 
 A verdict was rendered for the plaintiff; the defendant 
 appealed. 
 
 After passing upon the several errors assigned, the court, 
 A. "W. Stone, J., said that the evidence showed a contract, 
 and a part performance of it, by the delivery by the vendor 
 and the acceptance and payment of part of the lumber by 
 the vendee. " That the acceptance and receipt of some part 
 of the thing sold will take the case out of the statute is now 
 well settled, if any doubt ever existed upon the subject, and 
 that the acceptance and receipt may take place subsequent 
 to the making of the verbal agreement." 
 
 The requisites of the statute are fulfilled. 
 
 1 2 Parsons on Cont., § 4, p. 29, 2 3 Col., 8. 
 and note. 
 
CHAP. XTV.J ACCEPTANCE RECEIPT AND DELIVEET. 237 
 
 § 296. In Paige v. Ott ' the contract was for the de- 
 livery of a quantity of timber upon a given day at a stated 
 price to be paid upon delivery. A part only was delivered, 
 and the parties agreed that the contract should be consid- 
 ered as performed upon the delivery of another quantity at 
 a still future day. A portion of this was delivered and used 
 by the vendee ; it was held that there could be no recovery 
 for the lumber delivered under either contract. 
 
 The effect of the parol agreement extending the time 
 was discussed in the opinion of the court, and it was decided 
 that it was only a modification of the first agreement. 
 
 § 297. But in Avery v. Wilson 2 it was held that while, 
 as a general rule, no action will lie on the part of the vendor 
 upon a contract for the sale and delivery of a specified 
 quantity of goods, until the whole quantity is delivered, 
 yet where the whole delivery is to be at one and the same 
 time, and the vendee elects to receive a portion and appro- 
 priates the same to his own use, and by his acts evinces that 
 he waives the condition precedent of a complete delivery, 
 the vendor may recover for the portion delivered. 
 
 § 298. In Newhall v. Langdon, 3 A. had stored in a rail- 
 road depot one hundred barrels of flour, by itself, the car- 
 rier's charges paid, and the flour placed in charge of the 
 agent of the railroad company, as a warehouseman. A. 
 
 1 5 Denio E., 406. 242 ; Young v. Miles, 23 Wis., 643 ; 
 
 2 81 N. Y, 346; Mead v. De Gol- Cloud v. Monman, 18 Ind., 40; 
 yer,16 Wend., 636; Smith v. Brady, Horr v. Barkie, 8 Cal., 489; Cush- 
 17 N. Y., 187; Vanderbilt v. Eagle ing v. Breed, 14 Allen, 376; Kem- 
 Iron Works, 25 Wend., 665; Krom berly v. Patchin, 19 N. Y., 330; 
 v. Levy, 3 T. & C, 704; 6 id., 253; Waldron v. Chase, 37 Me., 414; 
 Flanagan v. Demorest, 3 Robt., Chapman v. Shepard, 39 Conn., 
 173; Nomington v. Cook, 2 T. & 413; Whitehouse v. Frost, 12 East, 
 C 423; Welch v. Moffat, 1 id., 614; also notes to Hurff v. Hires, 
 575. But see Cotlin v. Tobias, 26 17 and 18 Am. Law Reg., 17, 161, 
 N. Y., 217. in which the whole subject is ex- 
 
 s 39 Ohio St. E. See Wood v. haustively discussed and the cases 
 McGee, 7 Ohio, 467, distinguished; reviewed. See also, 28 Alb. L. 
 Steel Works v. Dewey, 37 Ohio St., Jour., 335. 
 
238 SALES. [chap. XIV. 
 
 sold to B. fifty barrels, and subsequently sold to 0. and D. 
 twenty-five barrels eacb, and gave to each purchaser, in the 
 order of sales, an order on the company's agent for the 
 number of barrels purchased. B. sent his team and driver, 
 with his order, to bring away part of the purchase. The 
 order was presented to the agent, who received it, and 
 pointed out the lot of flour, from which the driver took 
 seventeen barrels, leaving the order and his receipt for the 
 flour removed. 
 
 After that, on the same day, 0. and D. each presented his 
 order, receipted for, and took away the flour they had pur- 
 chased, leaving the thirty-three barrels due on B.'s order in 
 store, which were, the ensuing night, destroyed by fire. 
 
 It was the usage that flour so received by rail and stored 
 remained in the custody of the railroad company until sold, 
 and when sold the owner gave to each purchaser an order 
 on the company for the flour purchased, and upon presen- 
 tation of such order the agent would point out the lot from 
 which the order was to be filled, and the purchaser would 
 remove and receipt for the amount taken ; that nothing re- 
 mained to be done by the seller in contemplation of the 
 parties to complete the sale. It was held that by such 
 usage the flour called for by the order, after its acceptance 
 by the railroad company, was the property of the purchaser, 
 and he was liable to the seller for the price, though part of 
 it was destroyed before being removed to his actual pos- 
 session. 
 
 § 299. In order to constitute a delivery of goods, except, 
 perhaps, such as wine, oil, or grain of a common quality, 
 they must be set apart so that they may be taken without 
 any further act of the seller. 
 
 Thus it was held in a recent case involving the sale of 
 . lumber of a particular quality, that it was the duty of the 
 vendor to separate the same so that the lumber could be 
 identified, and until this was done there could not be a suf- 
 ficient offer to deliver as to put the vendee in default for 
 
CHAP. XIV.] ACCEPTANCE RECEIPT AND DELIVERY. 239 
 
 not accepting and carrying the same away. 1 In all such 
 cases the goods must be capable of identification. 
 
 So where there is a sale of goods, by number, weight or 
 measure, at so much a piece, a pound or bushel, it is neces- 
 sary that the things should be counted, weighed or meas 
 ured before the price or consideration to be paid can be 
 ascertained. Before this is done, the sale is not so consum- 
 mate and perfect as absolutely to change the property, but 
 the goods still remain at the risk of the vendor. 
 
 § 300. In Snider v. Thrall 2 it appeared that the defend- 
 ant sold a house to the plaintiff for $140, to be paid for in 
 cash, and work and materials. At the time the plaintiff 
 was in possession of the house. It was contended by the 
 plaintiff that the sale was void under the statute of frauds, 
 as the contract was not in writing. 
 
 There had been a chattel mortgage foreclosed on the 
 house while the plaintiff occupied it. The court said: "We 
 cannot see that it should change the result. The law 
 surely did not require, under the circumstances, that the 
 plaintiff should go through the idle ceremony of removing 
 from the house, delivering up possession to the defendant, 
 and then going back into possession under the sale in order 
 to make the contract valid." 
 
 A person can sell his property to his bailee and make a 
 good delivery of it without actually taking the property 
 into his own possession and then returning it to the posses- 
 sion of the vendee. The question was, Did the plaintiff 
 really purchase the house on the mortgage sale and go into 
 
 1 Hoffman v. King, 58 "Wis. E., 308. This, also, is the doctrine, as 
 
 314; 17 Northwestern E., 136; 2 laid down by Lord EUenborough, 
 
 Kent, Com., 496; Veazy v. Har- in Hanson v. Meyer, 6 East, 625; 
 
 mony, 7Greenl., 91; Isherwood v. and see Bailey v. Ogden, 3 John- 
 
 Whitmore, 11 Mees. & W., 345; son's E., 399-421. If no payment 
 
 Avery v. Stewart, 2 Conn., 69; qr tender of the price is made, the 
 
 Thrall v. Lathrop, 30 Vt., 307; vendor is at liberty to dispose of 
 
 Coles v. Clark, 3 Cush., 399 ; Morgan the goods as he pleases. Eoberts 
 
 v. Kidder, 55 Vt., 367. SeePothier, on Stat, of Frauds, 165, 166. 
 Traite du Contract de Vhnte, part 4, - 56 Wis., 674. 
 
240 SALES. [CHAP. XIV. 
 
 the possession of it as the owner under such sale? If he 
 did, as found by the court, then the contract was not within 
 the statute of frauds. 
 
 The judgment of the court below was affirmed. 
 
 § 301. The case of Blanchard v. Trim 1 decides the ques- 
 tion as to what will not amount to "a rescission of a sale. 
 There the plaintiff sold to one Calkins certain lumber, a 
 portion of which had been delivered. Finding himself un- 
 able to pay for the lumber he requested the plaintiff to buy 
 it back of him. After inspection of the lumber, in presence 
 of both parties, it was agreed that it should be taken back 
 by the plaintiff, and that he would draw the lumber away 
 as soon as the Aveather would permit. Before it was re- 
 moved the sheriff levied upon the lumber, by direction of 
 the defendants, under an execution in a judgment against 
 Calkins. It was claimed that the lumber had not passed to 
 Blanchard before the levy, for the reason that there was no 
 actual delivery of the possession, and that the statute of 
 frauds intervened and that the sale was void. 
 
 The plaintiff, appellant, contended that the transaction 
 was a rescission simply of an existing sale, and that under 
 the circumstances the title had passed to the original 
 vendor. 
 
 But the court held that as a simple sale by Calkins to 
 Blanchard it could not be sustained under the statute. The 
 delivery was not sufficient. As Calkins had had the lum- 
 ber for three months and used some of it, the court declared 
 the contract to be a resale, and not a modification of an 
 existing contract, and affirmed the judgment. 
 
 § 302. It may be stated as the general rule, that, where 
 no place is designated by the contract for the delivery of 
 goods sold, they are to be delivered where they are de- 
 posited or kept at the time of the sale ; that is, at the place 
 of their manufacture ; the store of the merchant ; the farm 
 of the farmer, and so on. This rule obtains where there are 
 
 1 38 N. Y., 235. But see Cumniings v. Arnold, 3 Met., 486. 
 
CHAP. XIV.] ACCEPTANCE EECEIPT AND DELIVEEY. 241 
 
 no controlling circumstances to show that a different place 
 was intended. 
 
 Illustration : A. does business in Boston ; B. in Portland ; 
 A., in his place of business, agrees to sell and deliver to B. 
 a quantity of glass ; A. does not then have the glass in store 
 or on hand, but has to purchase it in Sandwich to enable 
 him to fill the order. The evidence on the trial being con- 
 flicting as to the place of delivery, in such a case the onus 
 is upon the defendant B. to prove, by a preponderance of 
 evidence, that the glass was to have been delivered to him 
 at Portland ; not simply on the cars at Boston. 
 
 The presumption of law, that the place of delivery is the 
 place where the goods are at the time of the sale, is not re- 
 moved from the fact that the plaintiff has not the goods on 
 hand in store at the time, for potentially and prospectively 
 the goods are as if then actually in the store of the vendor. 1 
 
 § 303. In Mason v. The H. Whitbeck Company, 2 it is 
 held that although a contract may be void by the statute 
 of frauds, yet it is rendered binding from the time of de- 
 livery. 
 
 This was an action to recover an unpaid balance of the 
 contract price for a quantity of lath sold by the plaintiff to 
 the defendant. The defendant verbally agreed to purchase 
 all the lath which the plaintiff should manufacture during 
 the fall of 1871, at the mill of one McCartney, in Marinette. 
 The lath was to be piled on the dock of McCartney near 
 the said mill, the defendant agreeing to pay the plaintiff 
 " $1.48 per thousand for the said lath, delivered on the said 
 dock of William McCartney, aforesaid." 
 
 The plaintiff put about four hundred and fifty thousand 
 lath on the said dock as agreed, and notified the agent of the 
 defendant of the fact. The said agent then paid or ad- 
 
 i Benjamin on Sales, 1018, 1022; Janney v. Sleeper, 30 Minn., 473; 
 
 Middlesex Co. v. Osgood, 4 Gray, 28 Alb. Law Jour., 319; Roberts v. 
 
 447 ; Hamilton v. Calhoun, 2 Watts, Mazeppa Mill Company, 30 Minn., 
 
 139; Wilmouth v. Patten, 2 Bibb, 413; Codran v. Toher, 14 id., 293. 
 280 ; Sousely v. Burns, 10 Bush, 87 ; 2 35 Wis. , 165. 
 16 
 
242 SALES. [CHAP. XIV. 
 
 vanced to the plaintiff $400 on account of the same. Be- 
 fore anything further was done in the matter the lath were 
 destroyed by fire. 
 
 The answer alleged that the agreement was that the lath 
 should not be considered as delivered until they should be 
 counted and the number and quality thereof ascertained, 
 and that payment therefor was to be made upon the arrival 
 of a certain vessel upon which the lath' were to be shipped. 
 
 The testimony on these points was conflicting. 
 
 The motion of the defendant for a nonsuit at the trial, on 
 the ground that the contract was within the statute of frauds 
 and void, was denied. 
 
 Lyon, J., deemed it obvious that the case was not affected 
 by the statute of frauds. 
 
 On the trial the principal question litigated seems to have 
 been whether the lath had been so delivered as to pass the 
 title in them to the defendant. 
 
 The court say: "This question involved two proposi- 
 tions of fact asserted by the plaintiff and denied by the 
 defendant, namely : That the terms of the contract were 
 such that the piling of the lath upon the dock at the des- 
 ignated place, and giving the defendant due notice thereof 
 before the lath were burned, was a full delivery, and 
 passed the title to the lath to the defendant; and second, 
 that although the contract may have been as claimed by the 
 defendant, still, when such notice was given, the defendant 
 accepted the lath without count or inspection, and thus be- 
 came the absolute owner thereof." 
 
 The court thought the testimony tended to prove the 
 truth of both these propositions, " and it is obvious that if 
 either of them be true the plaintiff is entitled to recover. 
 The jury must have found that at least one of them was 
 proved, and, there being sufficient testimony to support the 
 verdict, the court cannot disturb it unless there was some 
 material error committed in giving the instructions to the 
 jury which were 1 given, or in refusing those which were 
 asked on behalf of the defendant and refused." 
 
CHAP. XIV.] ACCEPTANCE EECEIPT AND DELIVERY. 243 
 
 The court then reviewed the several instructions given at 
 the trial, and held that they stated the law correctly, but as 
 the instructions asked for were modified by the court, the 
 question was' discussed whether the judgment should be re- 
 versed. Upon reaching the conclusion that the validity of 
 the judgment was not affected by the modifications, as they 
 were " merely formal or technical errors " which could 
 work no injury to the party complaining of them, the judg- 
 ment in favor of the plaintiff was affirmed. 1 
 
 § 304. In Powers v. Barber 2 it appeared that the plaintiff 
 ordered a wagon of a builder, selected some portions of the 
 materials and marked them, and paid a part of the consider- 
 ation; and afterwards, on being notified that the wagon 
 would be completed on a certain day, he sent the rest of 
 the purchase price to the builder by mail, with directions 
 that he deliver the wagon to a certain person who would 
 call for it; the builder received the money so sent, but while 
 yet the wagon was.in his hands it was levied upon by the 
 defendant under an execution against the builder. In an 
 action by the buyer who had thus paid the price of the 
 wagon, it was held on appeal that the plaintiff was entitled 
 to recover, the title having passed to him by reason of the 
 payments to the builder. The payment was tantamount to 
 a delivery. 
 
 § 305. In Kirby v. Johnson, 3 Ryland, J., after quoting 
 from Chancellor Kent, says he concurs in ascribing to the 
 statute of frauds all that has been said in its praise. The 
 above action arose out of an alleged sale of " four yoke of 
 oxen " at the price of $40 per yoke. 
 
 Nothing was paid down, and the defendant told the plaint- 
 iff he could pay when he came for the cattle, which w r ould 
 suit as well. Plaintiff requested defendant to keep the oxen 
 until he sent for them, which the defendant agreed to do. 
 
 i See, also, Amson v. Dreher, 35 ever, nothing was paid on the con- 
 "Wis., 615 ; but see Cooke v. Millard, -tract. 
 65 N. Y., 352, in which case, how- 2 7 Alb. Law Jour., 170. 
 
 s 22 Mo., 354. 
 
244 SALES. [OHAP. XIV. 
 
 " The oxen were not removed from the pasture; the con- 
 tract was not reduced to writing, nor any money paid." 
 
 After the plaintiff started to leave,, the defendant said to 
 him, " Kemember, if any of the cattle die, they die yours, 
 and you must bear the loss." To which the plaintiff replied, 
 " Certainly." 
 
 • The defendant sold the cattle the next day to another 
 purchaser for $50 per yoke. 
 
 The action was to recover $40, the difference in the price. 
 
 Before the court below the plaintiff had judgment. 
 
 The defendant appealed to the circuit court, where, on 
 trial, the defendant had judgment. 
 
 In an elaborate opinion the court reviews the English 
 and American authorities, and decides that it " cannot be 
 pretended that Johnson had parted with his lien upon the 
 cattle for the purchase money. There was no act done after 
 the sale amounting to a delivery of the oxen by Johnson to 
 Kirby, and an acceptance by Kirby of the oxen from John- 
 son. There was no delivery with an intention of vesting 
 the right of possession in the vendee. 
 
 Eyland, J., further says: "If the courts of the country 
 should decide that such facts as appear in evidence in this 
 case are sufficient to take it out of the 'statute of frauds, 
 then it is difficult to find what will come within that statute. 
 Nay, we had better blot the statute from our books at once, 
 and not fritter away its vitality by constructive deliveries 
 and acceptance." The opinion of the learned justice is 
 sound, both in logic and in law. The decision rests upon 
 the well settled doctrine that words alone, in no case, can 
 constitute such a delivery as is contemplated by the statute 
 of frauds. 
 
 § 306. In Bailey v. Ogden 1 (1808), the question of deliv- 
 ery was passed upon by Kent, C. J. 
 
 The clause of the statute of frauds of New York state, as 
 to acceptance and receipt, was then the same as the English 
 statute. There, certain boxes of sugar had been bargained 
 
 1 3 Johns. E., 399. 
 
CHAP. XIV. J ACCEPTANCE RECEIPT AND DEEIVEEY. 245 
 
 for by an agent of the defendants, and the plaintiffs had 
 agreed to sell them at stated prices, upon indorsed notes; 
 the giving of such notes to be agreed upon when one of the 
 defendants, who was then absent, should return. Every- 
 thing else in respect to the contract was completed. 1 
 
 The day after the agreement, and before the indorsed 
 notes had been delivered, a fire ocoiirred and destroyed the 
 goods. The plaintiffs applied for the indorsed notes, but 
 the defendants refused to give them. 
 
 In an action of assumpsit for the price, the case turned 
 upon the pivotal question whether there had been a deliv- 
 ery. There had been no specific designation of the goods, 
 by marking them or otherwise, nor any delivery, symbol- 
 ical or actual. But the sugars were left in the possession of 
 the plaintiffs, and under the same apparent dominion as be- 
 fore the negotiation. 
 
 If the conversation about storage, and taking a minute 
 of the import entries, would in such case amount to an act- 
 ual delivery, said the court, and be deemed a substitute 
 for the note or memorandum in writing, " it appears to me 
 that the statute of frauds would, in a great degree, become 
 useless, and might be set aside as a dead letter." 
 
 " We do not wish to shake any of the cases in which the 
 actual delivery required by the statute has been dispensed 
 with, but those cases have gone far enough; our leaning 
 should be towards the plain meaning of the statute." The 
 motion of plaintiff for a new trial was denied. 
 
 The cases generally hold that the circumstances which 
 are to be tantamount to delivery should be strong and un- 
 equivocal, so as to remove all doubt as to the intent and 
 understanding of the parties. 1 
 
 § 307. The simple act of marking the goods with the 
 name of the buyer by his consent, ordinarily, is not such an 
 acceptance as to bind him, unless there has been a delivery 
 and actual receipt by the buyer. 2 
 
 igee Roberts on Frauds, 174 to 2 Caines, 44: and Lansing v. Tur- 
 183; 2 Esp. Cases, 598; Chaplin v. ner, 3 Johnson R.. 16. 
 Rogers, 1 East,192 ; Hunn v. Bowne, 2 Dyer v. Libby, 61 Me., 45 ; Rap- 
 
246 SALES. [chap. XIV. 
 
 So, also, it is well settled that where a delivery of goods 
 is made for the special purpose, namely, to meet some term 
 in the contract not inconsistent with the retention of the 
 title by the seller, such qualified delivery does not pass the 
 title contrary to the real intention of the parties at the 
 time. 1 
 
 Under a parol contract, although a bill of the goods pur- 
 chased has been received by the purchaser, containing the 
 terms of the sale, it is not taken out of the statute of frauds 
 before actual receipt and acceptance of the goods. 2 
 
 § 308. In Pindall v. Trevor 3 the court says : " The statute 
 of frauds is not an utterly inflexible one. Like all others of 
 its class, it has its exceptions and modifications, and equity, 
 especially, will always apply the exceptions and modifica- 
 tions when truth and justice demand it, and where the facts 
 by the evidence warrant it." 
 
 In the early case of Keatts v. Rector, 4 it was held that 
 if possession be delivered and obtained solely under the con- 
 tract and in reference exclusively to it, then the possession 
 will take the case out of the statute of frauds. 5 
 
 In Yincent v. Germond, supra, where the defendant pur- 
 chased some cattle in the plaintiff's field, and nothing was 
 paid, but the cattle were to be at the vendee's risk; and 
 afterward the defendant, without saying anything to the 
 plaintiff, took them away, it was held to be a good delivery. 
 The conduct of the defendant in taking away the cattle 
 without any new contract was sufficient ground to infer 
 delivery. 
 
 The statute is not to be construed so as to be the means 
 of fraud. And where it has been used as a cover to a fraud, 
 equity will relieve against its provisions. 6 
 
 pleye v. Adee, 65 Barb., 589 ; Bill v. * 1 Ark., 418. 
 
 Bament, 9 M. &W., 36; Proctor v. 5 Cain v. Leslie, 15 Ark., 312; 
 
 Jones, 2 C. & P., 532. Rhea v. Puyear, 26 Ark., 344; Vin- 
 
 1 Cornell v. Clark, 6 Cent. L. R., cent v.' Germond, 11 Johns., 283. 
 
 508; 10 Northwestern R., 888. GR yan v _ Dorr) 34 N Y ., 307; 
 
 2 Pike v. Wieting, 49 Barb., 314. Browne on Stat, of Frauds, § 438; 
 
 a 30 Ark. R., 262 (1875), Moore, Tague v. Fowler, 5 Ind. R., 569. 
 Sp. J. 
 
CHAPTEE XT. 
 
 CONCERNING SALES OF GOODS BY SAMPLE. 
 
 § 309. Samples treated as specimens, or part of the bulk; general 
 rules. 
 
 310. The statute of frauds may be satisfied, and still the purchaser 
 
 may reject the goods sold by sample. 
 
 311. Where the sample is retained as part delivery; Lord Ellen- 
 
 borough's views. 
 
 312. Where a contract is void under the statute of frauds, mere de- 
 
 livery will not pass the title ; otherwise as to a written con- 
 tract ; the case of Taylor v. Mueller. 
 
 313. The purchaser of goods by sample may reject them if not equal 
 
 to sample. 
 
 314. Where the defendant bought certain wheat by sample, and ex- 
 
 ercised certain acts of ownership over it, and the wheat was 
 equal to sample, the plaintiff recovered judgment; the case of 
 Dows v. Montgomery. 
 
 315. Right of option of the purchaser. 
 
 316. When acceptance may take place ; sale of unascertained prop- 
 
 erty. 
 
 317. A sub-sale, evidence of acceptance ; as to parol evidence of the 
 
 contract ; instance of resale of goods bought by sample, be- 
 fore examination ; Morton v. Tibbett. 
 
 318. Acceptance of part as part performance of the contract ; Simp- 
 
 son v. Krumdick; Morton v. Tibbett criticised. 
 
 319. Although goods be accepted, the purchaser may still reject 
 
 them; evidence of acceptance, what sufficient; Kibble v. 
 Gough ; goods equal to sample. 
 
 320. What is an admission that there was a contract; a sale of 
 
 wheat by sample ; the bulk equal to sample ; act of exam- 
 ination admits a contract ; Page v. Morgan. 
 
 321. The same subject ; acceptance follows a recognition of the ex- 
 
 istence of the contract of sale. 
 
 322. The case of Page v. Morgan discussed. 
 
 323. What amounts to an acceptance ; Justice Blackburn's rule. 
 
 324. Where there is no contract in writing, there must be some 
 
 overt act of acceptance ; Rickard v. Moore, reviewing Kibble 
 v. Gough. 
 
 325. How far custom governs; carrier cannot accept goods without 
 
 special authority. 
 
248 SALES, [CHAP. XV. 
 
 § 309. "Where goods are sold by sample, the sample may- 
 be taken simply as a specimen of the kind and quality of 
 the goods, not forming any part of the goods sold; or the 
 sample may be mutually considered by the parties as form- 
 ing a part of the bulk. Where the latter is the case, the 
 acceptance of the sample will satisfy the statute of frauds 
 as to the fact of sale. 
 
 In all such cases it is requisite that goods shall be pro- 
 nounced satisfactory by the purchaser, or that he shall have 
 dealt with the goods, or done some act in regard to them 
 evidencing his intention to accept and receive them uncon- 
 ditionally. 1 
 
 § 310. The case of Kemick v. Sandford 2 arose out of a 
 sale by sample. It was there laid down that it is not 
 enough for the vendor to show the mere fact that the goods 
 correspond with the sample. He must go further and show 
 that there was an acceptance and actual receipt by the 
 vendee, to the extent of exercising dominion over the goods 
 sold. It seems quite immaterial whether the buyer's refusal 
 to accept and take the goods in fulfillment of the contract 
 be reasonable or unreasonable ; the real question to be deter- 
 mined in all such cases is whether he has accepted the goods. 
 
 In the above case, Devens, J., said : " There may undoubt- 
 edly be an acceptance which will not afford conclusive evi- 
 dence that the contract has been fulfilled and its terms com- 
 plied with, and which will yet satisfy the statute, and let in 
 evidence of those terms which otherwise could only be 
 proved by writing. If the buyer accepts the goods as those 
 which he purchased, he may afterwards reject them, if they 
 were not what they were warranted to be; but the statute is 
 satisfied. But, while such an acceptance satisfies the statute, 
 
 ipinkham v. Mattox, 53 N, H., Y., 587; Hausmanv. Nye, 62 Ind., 
 
 604; Strong v. Dodds, 47 Vt„ 358; 491; Bush v. Holmes, 53 Me., 417. 
 Davis v. Eastman, 1 Allen, 422; 2 120 Mass., 309, 316. See, also, 
 
 Stone v. Browning, 68 N. Y., 600; Borrowscale v. Bosworth, 99 id., 
 
 51 id., 211 ; Hewes v. Jordan, 39 381 ; Cooper v. Elston, 7 T. K„ 14. 
 Md., 472; Brewster v. Taylor, 63 N. 
 
CHAP. XV. J OF GOODS BY SAMPLE. 24:9 
 
 in order to have that effect it must be by some unequivocal 
 act done on the part of the buyer, with intent to take pos- 
 session of the goods as owner. The sale must be perfected, 
 and this is to be shown, not by proof of a change of posses- 
 sion only, but of such change with such intent. 
 
 " When it is thus definitely established that the relation 
 of vendor and vendee exists, written evidence of the con- 
 tract is dispensed with, although the buyer, when the sale 
 is with warranty, may still retain his right to reject the 
 goods if they do not correspond with the warranty. That 
 there has been an acceptance of this character, or that the 
 buyer has conducted himself with regard to the goods as 
 owner, is to be proved by the party setting up the contract. 
 It cannot be inferred as matter of law, merely from the cir- 
 cumstance that the goods have come into the possession of 
 the buyer." 
 
 The above decision is given quite in extenso, as it is a 
 clear expression of the law arising in all such cases, and 
 seems to be in accordance with the English and American 
 decisions. 
 
 § 311. The same general rule has been followed in the 
 English cases. Thus, in Hinde v. Whitehouse, 1 Lord Ellen- 
 borough, Oh. J., observed that although it be delivered 
 partly alio intuitu, namely, as a sample of quality, it'does 
 
 1 7 East, 558. See, also, Garfield ute of frauds ; but it is otherwise 
 v. Paris, 96 U. S., 565; Brandt v. where the buyer draws samples 
 Focht, 1 Abb. Ct. App. Dec, 185; from the bulk after ho has pur- 
 Atwood v. Lucas, 53 Me., 508; Dan- chased the goods. If a sample is 
 forth v. "Walker, 40 Vt., 257 ; Brock taken as part of the bulk sold it is 
 v. Knower, 37 Hun, 609. In Gard- a delivery within the statute, even 
 ner v. Grout (2 C. B. N. S., 340) it if done by the agent of the pur- 
 was held that where the goods are chaser. Klinitz v. Surry, 5 Esp., 
 sold by sample the handing over 267. So the delivery was held to 
 the samples to the buyer does not, be complete (in Green v. Haythorne, 
 in the "absence of evidence of a 1 Stark., 447) where wool was sold 
 usage or a custom to the contrary, for a bill of nine months, and 
 amount to a delivery and accept- weighed and sample taken, and 
 ance of a part of the thing sold, so several bags delivered, but no bill 
 as to take the case out of the stat- was drawn. 
 
250 SALES. [chap. XV. 
 
 not therefore prevent its operating to another consistent 
 intent, also in pursuance of the purpose of the parties, as 
 expressed in the conditions of sale, namely, as a part deliv- 
 ery of the thing itself, as soon as in virtue of the bargain 
 the buyer should be entitled to retain, and should retain it 
 accordingly. 
 
 § 312. In the quite recent case of Taylor v. Mueller, 1 it 
 appeared that the defendants verbally contracted by sample 
 to purchase a lot of grain, which was then in an elevator, 
 the same to be delivered at a specified place and at a stated 
 price. 
 
 The plaintiff gave to the defendants an order on the 
 keeper of the elevator, which order was handed to him, and 
 afterwards the grain was sent by a carrier to the place 
 agreed upon for its delivery. The defendants refused to 
 receive it on the ground, as alleged, that the grain was in- 
 ferior in quality to the sample. 
 
 The court held that there was no delivery ; and also, that 
 if the contract was otherwise void under the statute of 
 frauds, it could not be enforced against the defendants. It 
 is settled that a delivery in pursuance of a written contract 
 will pass the title, but otherwise where the contract is void 
 by the statute. In all such cases the shipment or transpor- 
 tation 1 is at the risk of the vendor; for the act of the vendor 
 alone is not sufficient to satisfy the statute of frauds. 
 
 In this case there was neither delivery nor acceptance 
 while the grain was in the elevator in the name of the 
 plaintiff. Nor did the circumstance that a delivery order 
 was issued constitute an actual receipt of the grain on the 
 part of the defendant. It w T as simply a written authority 
 or right to receive and take the grain into possession. 
 
 It was held that a constructive receipt by the carrier at 
 the elevator, upon the plaintiff's order, though at the de- 
 fendant's request to send it to the place for delivery, fol- 
 
 ^OMinn. R., 343, decided March, St. Louis Railroad Company, 33 
 1883, Vanderburgh, J.; Yallop-De Minn., 482, 501. 
 Groot Company v. Minneapolis & 
 
CHAP. XV. J OF GOODS BY SAMPLE. 251 
 
 lowed as it was by a reasonable inspection and rejection, 
 because not equal to sample, did not amount to an accept- 
 ance. That the distinction between a mere delivery or re- 
 ceipt and acceptance is not to be lost sight of ; and where 
 the goods are sold by sample, that fact must be considered 
 as an element in the case in determining whether the buyer 
 has taken actual or constructive possession as owner, so 
 as to indicate an acceptance thereby ; and the burden of 
 proof in all such cases rests with the vendor to show the in- 
 tent on the part of the buyer to take possession as owner. 1 
 
 § 313. In Smith v. Stroller, 3 as it appears, there was a 
 sale of certain teas by sample. The price of the same 
 amounted to more than " $50." By the statute of frauds 
 of Wisconsin, a contract for the sale of goods, etc., unless 
 the requirements of the statute are fulfilled, is declared to 
 be " void." 
 
 In this case, in the court below, it was charged that un- 
 less the teas sold to the defendant were as good as the 
 sample shown him by the plaintiffs, the defendant had the 
 right to refuse to receive the teas. 
 
 The question of acceptance was involved. 
 
 The court also charged that there must have been a de- 
 livery of the teas with the intention on the part of the 
 plaintiffs of vesting the possession of the same in the de- 
 fendant; and there must have been an actual acceptance by 
 the defendant with the intention of keeping the teas if equal 
 to the sample. 
 
 It was proved that the teas did not correspond with the 
 sample. Accordingly, the court held that the charges in 
 the court below were proper, and the judgment in favor of 
 the defendant was affirmed. 
 
 § 314. In Dows v. Montgomery 3 the sole question was as 
 to whether there was an acceptance and receipt of the goods 
 
 1 Tanner v. Scovill, 14 Mees. & N. Y., 5; Johnson v. Campbell, 105 
 
 W., 28; Caulkins v. Bellman, 47 Mass., 449; 28 Alb. Law Jour., 57. 
 
 N. Y.,452; Knight v. Mann, 120 2 26 Wis., 671. 
 
 Mass., 220; Allard v. Greasert, 61 3 5 Robt. Super. Ct. R. 445., 
 
252 SALES. [chap. XV. 
 
 alleged, to have been sold by sample. It was a verbal con- 
 tract for the purchase of two boat loads of wheat on board 
 the boats Wiltsie and Maria, lying in the port of New 
 York, on June 5, 1861. The wheat was to be put in store 
 for account of the defendant for ten days, at one and one- 
 fourth cents per bushel for that time, to be paid by the de- 
 fendant. He was also to pay the plaintiffs $1 a bushel 
 within ten days after the said sale. The cargoes were, at 
 the defendant's request, sent to the warehouse of one Bar- 
 ber, on account of the defendant. 
 
 The answer of the defendant was, in effect, a general de- 
 nial. Afterwards, the defendant put in a supplemental 
 answer, averring a rescission of the contract of sale and de- 
 livery by the plaintiffs, in that the plaintiffs had sold and 
 delivered the wheat to other parties. The plaintiffs replied, 
 denying the rescission, but admitting the resale, and alleging 
 that the defendant was indebted to them in the sum of 
 $2,117.16, the difference between the contract price with the 
 defendants and the amount realized on the resale. 
 
 The referee, to whom the issues were referred, found for 
 the plaintiffs. The warehouseman was requested by the 
 plaintiff to screen and How the wheat, and see that it cor- 
 responded to the sample when he took it into his store. 
 
 It was proved by Barber that the bulk did correspond 
 with the samples. 
 
 The referee found: "The defendant bought such wheat 
 for shipment and exportation; and the plaintiffs had reason 
 to suppose, and did suppose, that he intended to export the 
 same. It was not in good condition for shipping; but 
 wheat in the same condition was being shipped and exported 
 from New York at that time." 
 
 The defendant repudiated the contract on the ground that 
 the wheat was not fit to export, and not such as the plaint- 
 iffs agreed to deliver. It was contended by the plaintiffs 
 that the delay in defendant's repudiation (from June 5, 
 when the wheat was put in the warehouse, to the 14th, when 
 
OHAP. XV.] OF GOODS BY SAMPLE. 253 
 
 the defendant refused, to take it) was sufficient evidence of 
 acceptance to satisfy the statute of frauds. 1 
 
 After reviewing the testimony taken before the referee, 
 which showed that the sale was by sample; that " by ar- 
 rangement of the parties and at the request of tlie defendant, 
 delivered to and stored with Mr. Barber, for the defendant 
 and on his account; " and that " Barber, as the agent of and 
 at the request of" the defendant, received' such wheat and 
 " compared it with the samples," with which the bulk cor- 
 responded,— the court, Eobertson, Ch. J., said that " the 
 findings of the referee as to the delivery of the wheat must 
 be considered as final;" 2 and, therefore, the contract was 
 not governed by the statute of frauds. 
 
 " The only two facts militating against this conclusion," 
 says the court, " were the entry of the wheat in the ware- 
 house keeper's books as received from the plaintiffs, and his 
 receipt to the same effect, and the resale of the wheat by 
 the plaintiffs. The first is fully explained by the custom of 
 the business, the indorsement of such receipt to the defend- 
 ant and his retaining the same. The second may have been 
 some evidence of the sale never having taken place, but the 
 referee disposed of its effect as such with the other evidence, 
 and it could not have disproved both the sale and its re- 
 scission." The judgment was affirmed. 
 
 At the time of the resale notice was given to the defend- 
 ant, and was declared by the plaintiffs not to be a rescission, 
 but to be a sale on account of the defendant. 
 
 Monell, J., concurred, and said that the evidence of de- 
 livery and acceptance of the wheat was sufficient to bring 
 the case within the exception contained in the statute. 
 
 § 315. In Gilman v. Hill, 3 Eastman, J., observes that 
 there is no acceptance unless the purchaser has exercised 
 
 1 Hollingsworth v. Napier, 3 2 Osborn v. Marquand, 1 Sandf., 
 
 Caines, 182; Wilkes v. Ferris, ,5 457; Mann v. Whitbeck, 17 Barb., 
 
 Johns., 335 ; Gray v. Davis, 6 Seld., 388 ; Heritage v. Hall, 33 id. , 347. 
 
 285 ; Outwater v. Dodge, 6 Wend. , a 36 N. H. , 311 ; Gorham v. Fisher, 
 
 379; Spencer v. Hale, 30 Vt., 314. 30 Vt., 428. 
 
254 SALES. [CHAP. XT. 
 
 his option to receive the goods sold or not, or has done some- 
 thing to deprive him of his option. 
 
 § 316. In Bog Lead Mining Co. v. Montague, 1 it is held 
 that in a contract for the purchase of unascertained prop- 
 erty to answer a particular description, no acceptance can 
 properly be said to take place until the vendee has exercised 
 the right of rejection. For the reason that the offer of 
 purchase is subject to the assent or dissent of the vendee. 
 Such final and complete acceptance should follow, not pre- 
 cede, that of the seller. 
 
 " But," says Willes, J., " where the contract is for a specific 
 ascertained chattel, the reasoning is altogether different. 
 
 "Equally where the offer to sell and deliver has been 
 first made by the seller and afterwards assented to by the 
 buj^er, and where the offer to buy and accept has been first 
 made by the buyer and afterwards assented to by the seller, 
 the contract is complete by the consent of both parties, and 
 it is a contract the expression of which testifies that the 
 seller has agreed to sell and deliver and the buyer to buy 
 and accept the chattel." In the latter case, it has been held 
 that the statute of frauds may be satisfied by an acceptance 
 preceding the delivery. 2 
 
 § 317. An important English case, upon the question of 
 acceptance of goods sold by sample, is Morton v. Tibbett. 3 
 There the defendant verbally agreed to purchase of the 
 plaintiff "fifty quarters of wheat," each quarter to be a 
 specified weight. A general carrier, selected by the defend- 
 ant, received the wheat on board lighters for conveyance 
 by canal to "Wisbeach. 
 
 Before the wheat arrived at "Wisbeach, the defendant, by 
 the same sample he had purchased, resold the wheat under 
 
 1 10 C. B. N. S., 481. v. Hecht, 8 Exch., 814; Coombs v, 
 ^Cusack v. -Robinson, 1 B. & S., Bristol & Exeter, R. R. Co., 3 
 299. Hurl. & N. , 510 ; Castle v. Sworder, 
 3 15Q. B.,428; Bushell U.Anna- 6 id., 833. But see Currie v. An- 
 num, 15 Adol. & E. (N. S.), 428. derson, 2 El. & EL, 598; Strong v. 
 For disapproval of Morton v. Tib- Dodds, 47 Vt., 358. 
 bett, see exchequer cases, Hunt 
 
CHAP. XV.] OF GOODS BY SAMPLE. 255 
 
 an agreement tbat it should be of the same weight per quarter 
 as was agreed upon with the plaintiff. Upon examination, 
 the wheat was rejected as being short in weight. The de- 
 fendant accordingly refused to receive it for the same rea- 
 son, and it remained in possession of the Garrier. 
 
 At the trial the jury found the wheat to be equal to 
 sample and they rendered a verdict for the plantiff. 
 
 The appellate court held that the verdict was justified by 
 the evidence, and that the jury properly found an accept- 
 ance and actual receipt on the part of the defendant. 
 
 After stating that acceptance is to precede or to be con- 
 temporaneous with the actual receipt of goods, and not a 
 subsequent act after the goods have been actually received, 
 weighed, measured, or examined ; and that it must be open 
 to the buyer to object to the quantity and quality of the res- 
 idue; and even where the sale is by sample, that the resi- 
 due offered does not correspond with the sample, Lord 
 Campbell says : 
 
 " We are of opinion that there may be an acceptance and 
 receipt within the meaning of the act without the buyer 
 having examined the goods, or done anything to preclude 
 him from contending that they do not correspond with the 
 contract. The acceptance to let in parol evidence of the con- 
 tract appears to us to oe a different acceptance from that 
 which affords conclusive evidence of the contract having oeen 
 fulfilled:' 
 
 Commenting on the last clause of the above opinion, Mr. 
 Benjamin observes that the question presented to the court 
 may be, whether there was a contract, or it may be whether 
 the contract was fulfilled. 
 
 Lord Campbell further declared "that, although the de- 
 fendant had done nothing which would have precluded 
 him from objecting that the wheat delivered to the carrier 
 was not according to the contract, there was evidence to 
 justify the jury in finding that the defendant accepted and 
 received it." 
 
 One of the grounds for holding that there was an accept- 
 
256 SALES. [CHAP. XV. 
 
 ance seems to have been that the defendant resold the 
 wheat before examination. All this was such an exercise 
 of ownership or dominion over the goods, concludes the 
 same writer, as is inconsistent with a continuance of the 
 right of property in the vendor, and a justification for 
 the jury to find an acceptance and an actual receipt by the 
 buyer under the statute. 
 
 The decision seems to go to the extent of holding that 
 such a receipt amounts to an acceptance of the part taken 
 in at the warehouse of the vendee, but not as to the part 
 not yet delivered. As this was an entire contract, it would 
 seem that a rejection of the instalment delivered would 
 be a rejection of the whole. 
 
 And the case of Marshall v. Green x goes to the point 
 that a sub-sale, standing alone, where the vendee has done 
 nothing to the property sold, would not be evidence of an 
 actual receipt. 
 
 § 318. In Simpson v. Krumdick, 2 Gilfillan, Ch. J., review- 
 ing the opinion of Lord Campbell in Morton v. Tibbett, 3 
 where it is said that the acceptance to let in parol evidence of 
 the contract appears to be a different acceptance from that 
 which affords conclusive evidence of the contract having 
 been fulfilled, observes: "It may be doubted that this gen- 
 eral proposition is correct. It is claimed the correct state- 
 ment of the law is, that where receipt and acceptance of 
 part of the goods is relied on to make the contract valid, 
 the acceptance of such part must be the ultimate accept- 
 ance of that part as a part performance of the contract of 
 sale, leaving no right in the buyer to subsequently reject 
 the part so accepted; . . . though he may not be pre- 
 cluded from questioning the quality or quantity of the resi- 
 due." 
 
 § 319. In Kibble v. Gough 4 — which case affirms Mor- 
 ton v. Tibbett, 5 decided by the queen's bench a quarter of 
 
 1 1 C. P. Div., 35. *38 Law Times Rep., N. S., 204 
 
 2 28 Minn., 352. 5 15 Queen's Bench, 428. 
 
 3 15 Q. B., 428. 
 
CHAP. XV.] OF GOODS BY SAMPLE. 257 
 
 a century before — there was no memorandum in writing, 
 and the question was whether the defendant had accepted 
 and actually received the goods. The sale was by sample. 
 
 The defendant verbally agreed to purchase a specific 
 quantity of barley of the plaintiff, upon the terms that the 
 bulk should be. well dressed and equal to sample. The 
 plaintiff delivered an instalment of the barley to the de- 
 fendant, whose foreman received it and gave a receipt for 
 it as " not equal to sample." The next morning the de- 
 fendant himself inspected the bulk, and wrote a letter im- 
 mediately to the plaintiff, refusing to accept the barley on 
 the ground that it was not well dressed nor equal to 
 sample. 
 
 On the trial the jury found that the goods were equal to 
 sample, and gave a verdict for the plaintiff. 
 
 The court asserts the English rule as to the sufficiency of 
 evidence of acceptance of goods within the meaning of the 
 statute of frauds. Bramwell, L. J., said : " There is no 
 doubt about the delivery of the first thirteen quarters ; was 
 there an acceptance of them ? I will not say that the de- 
 cision in Morton v. Tibbett was wrong; on the contrary, I 
 think it was right. A man may accept goods without los- 
 ing his right of objection to them ; there must be such an 
 acceptance to satisfy the statute as amounts to a recogni- 
 tion of the contract between the parties." In Morton v. 
 Tibbett the goods were taken in by the buyer, and were 
 dealt with for a short time, but were not kept for so long a 
 time that the buyer would have had no power to reject them 
 if they had proved not to be equal to sample. In Page v. 
 Morgan, 1 Brett, M. E., referring with approval to the de- 
 cision in Kibble v. Gough, says : "In a case where goods 
 are delivered, and the buyer takes possession of them and 
 deals with them, if he could not do so unless he had made 
 a contract, and unless the goods had been delivered in ful- 
 fillment of that contract, there is evidence for the jury of 
 an acceptance to satisfy the statute." There the court held 
 
 1 33 Weekly R., 793. 
 17 
 
258 SALES. [chap. XV. 
 
 that there was evidence of an acceptance sufficient to sat- 
 isfy section 17 of the statute of frauds, notwithstanding the 
 fact that immediate notice was given to the vendor that 
 the goods were not equal to sample and they refused to ac- 
 cept them. 
 
 § 320. The case of Page v. Morgan x is one of the most 
 recent and pronounced English authorities as to acceptance 
 under section 17 of the statute of frauds. There was no 
 memorandum in writing of the contract ; but in pursuance 
 of a verbal agreement, the plaintiff sent a large number of 
 sacks of wheat by barges to the defendant's mill. They 
 arrived in the evening. The next day some of the sacks 
 were put in the warehouse of the defendant and the wheat 
 was examined. The defendant's foreman stopped any fur- 
 ther delivery on the ground that the wheat was not equal 
 to sample, and the bulk of the wheat remained in the 
 barges. There the same remained until after the com- 
 mencement of this action, when, by order of the court, it 
 was sold and realized £44 less than the agreed price. 
 
 The jury rendered a verdict for the plaintiff, and they 
 found, also, that the bulk of the wheat was equal to sam- 
 ple. 
 
 Upon a judgment, sustaining the court below, after re- 
 ferring to the fact that the foreman examined the wheat, 
 Brett, M. K., said : " I cannot see how he could do that unless 
 he knew that there was a contract, and that the wheat had 
 been delivered in pursuance of the contract, and therefore 
 the jury were entitled to say that he examined the wheat 
 in order to ascertain whether it was equal to sample." 
 
 He further says : " How reasonable men could come to 
 any other conclusion except that the defendant admitted 
 that there was a contract relating to wheat, ... I am 
 unable to understand. No doubt there might be circum- 
 stances attending the delivery of goods which would not 
 lead to a similar conclusion, as, for instance, if the person 
 to whom the goods were delivered refused to allow them 
 
 133 Weekly Rep., 793; 53 L. T. N. S., 126, S. C. 
 
CHAP. XV.J OF GOODS BY SAMPLE. 259 
 
 to remain on his premises or to have anything to do with 
 them. In such a case, although there would be a delivery, 
 there would be no acceptance. I rely not only on the de- 
 livery and the fact that the goods were in the defendant's 
 warehouse, but on the fact that he examined them, and by 
 doing so admitted that there was a contract. That is all 
 that is necessary to justify the verdict of the jury. The 
 case of Kibble v. Gough l is a decision which is binding on 
 this court, but I do not think that Kickard v. Moore 2 was 
 decided under such circumstances as to be binding on us in 
 the present case. For these reasons I am of the opinion 
 that there is no color for the suggestion that there was any 
 misdirection at the trial, and that being so, the decision of 
 the divisional court was correct, and this appeal must be 
 dismissed." 
 
 § 321. Concurring in the above opinion, Baggallay, L. 
 J., said : " The decisions in Morton v. Tibbett and Kibble 
 v. Gough show that there may be an acceptance and receipt 
 sufficient to satisfy the provisions of section 17, although 
 the circumstances are not such as to preclude the purchaser 
 from afterwards rejecting the goods on the ground that 
 they are not equal to sample. It is true that there was 
 some difference of opinion in the old cases as to what con- 
 stituted a sufficient acceptance, but the question seems now 
 to be settled, for Kibble v. Gough affirmed Morton v. Tib- 
 bett after that decision had stood for nearly twenty-eight 
 years. In Kickard v. Moore there is a distinction as to the 
 facts, and there is also this distinction, that the jury in that , 
 case found that the goods were not equal to sample. Here, 
 and in the other two cases to which I have referred, the 
 jury found the contrary.. I have no doubt that there was 
 evidence to go to the jury in the present case, and that 
 their verdict was right." 
 
 Bowen, L. J., thought Kibble v. Gough was controlling. 
 He said : " An acceptance and receipt is the condition on 
 which the validity of the contract depends, and one would 
 1 38 L. T. Eep. N. S., 304. 2 38 L. T. Kep. N. S. ( 841. 
 
260 SALES. [chap. XV. 
 
 expect that the legislature would mean that .it should 
 amount to an acceptance where the buyer was dealing with 
 the goods in such a way as to recognize the existence of the 
 contract of sale, and the fact that the goods had been sent 
 to him under it. That is the effect of the decision in Kib- 
 ble v. Gough. The decision in Kickard v. Moore, as to the 
 acceptance, was merely on a secondaiy point, and I think 
 that Bramwell, L. J., could not have meant to unsettle the 
 law as laid down in Kibble v. Gough. Even if this were 
 so, I am of opinion that, having the two cases in the court 
 of appeal before us, we ought to go back to Kibble v. Gough, 
 ■and follow that decision." 
 
 Appeal dismissed. 
 
 § 322. As shown by the last three sections, the English 
 doctrine is, that where there is a purchase by sample, and 
 the goods are delivered in whole or in part, the fact of their 
 delivery into the warehouse of the purchaser and an exam- 
 ination made by him, for the purpose of ascertaining 
 whether they are equal to sample, as he has a right to do, 
 is sufficient evidence of admission that he has made a con- 
 tract to satisfy section 17 of the statute of frauds. 
 
 Thus, in Page v. Morgan, supra, the court, as a reason 
 why there was an acceptance, relied " not only on the de- 
 livery and the fact that the goods were in the defendant's 
 warehouse, but on the fact that he examined them, and by 
 doing so admitted that there was a contract." And further, 
 the court declared that, if the person to whom the goods 
 were delivered refused to allow them to remain on his 
 premises, or to have anything to do with them, there would 
 be no acceptance. ,. 
 
 The questions at once arise :, How is the person to whom 
 the goods are sent to determine whether he will allow them 
 to remain on his premises or accept them until he has had 
 the opportunity of examining them; and why an immedi- 
 ate notice from the vendee that he does not accept the 
 goods is not equivalent to a refusal to allow them to re- 
 main on his premises? Such notice would seem to be a part 
 
CHAP. XV. J OF GOODS BY SAMPLE. 261 
 
 of the .res geata. For the condition that the bulk should be 
 equal to sample is the sine qua non to the validity of the 
 verbal contract. 
 
 To hold that because a person acts in regard to goods de- 
 livered in pursuance of a verbal agreement as admits that 
 he has made a contract, he has therefore accepted them, 
 and is debarred from objecting to the portion delivered, 
 would seem to be a violation of sound commercial usage as 
 well as against the spirit and letter of the statute. To adopt 
 the same mode of reasoning in regard to part payment, ac- 
 ceptance, or as to the memorandum, would virtually over- 
 turn many weU established cases. 
 
 § 323. A sound and consistent rule is laid down by Mr. 
 Justice Blackburn. He says that so long as the buyer can, 
 without self-contradiction, declare that the goods are not to 
 be taken in fulfillment of the contract, he has not accepted 
 them. And it is immaterial whether his refusal to take the 
 goods bargained for be reasonable or not ; or whether the 
 reasons assigned be false or frivolous, if it be evidenced 
 that he does not accept them, the question is not whether 
 he ought to accept, but the real question always is whether 
 he has accepted them} 
 
 § 324. The facts in Eickard v. Moore 2 were as follows : 
 The plaintiff verbally "sold to the defendant six bales of 
 wool, by sample. The goods were delivered by the plaint- 
 iff at a railway station, and from thence they were, taken 
 by the defendant to his own premises, and unpacked. The 
 same day he wrote to the plaintiff, stating that two of the 
 bales were inferior to sample, and added, " Please say what 
 is to be done in the matter." The plaintiff answered deny- 
 ing the statement. Three days thereafter the defendant, 
 who had been absent from home, read the plaintiff's letter, 
 and sent the goods back to the railway station and tele- 
 graphed to the plaintiff, refusing to accept the goods. 
 
 Between the date of purchase and the refusal to accept 
 (four days), the defendant offered the goods for sale, stat- 
 
 i Blackburn on Sales, 22, 23 ; Kent 2 38 L. T. N. S. , 841 (1878). 
 v. Huskinson, 3 Bos. & Pul., 233. 
 
262 SALES. [CHAP. XV. 
 
 ing, however (according to his own evidence), that he had 
 not accepted the goods, and that he would have to make 
 other arrangements before he could sell them. At the trial 
 the jury found that two hales were not equal to sample, and 
 the judge directed a judgment for the defendant. 
 
 It was held, as there was no evidence of a sufficient ac- 
 ceptance and receipt of the goods within section 17, the 
 judgment was rightly entered for the defendant. 
 
 In general the object of the statute is that where there is 
 no contract in writing there must be some overt act to ren- 
 der the bargain binding. Bramwell, L. J., pointed out the 
 distinguishing differences between the above case and that 
 of Kibble v. Gough, 1 namely, that in the one case, the jury 
 found that the goods were equal to sample, and in the other 
 that they were not. 
 
 § 325. The case of Smith v. Hudson 2 arose out of a con- 
 tract of sale of certain barley by sample. The contract was 
 oral. 
 
 Four days after the bargain was made, the barley was de- 
 livered by the seller at the freight-house of a railroad, con- 
 signed to the order of the buyer, a place where he had 
 delivered grain to the buyer on previous occasions, and 
 where it was the buyer's custom to receive grain from other 
 sellers. 
 
 It was the custom of the trade for the buyer to compare 
 the sample of the goods with the bulk as delivered, and, if the 
 examination was not satisfactory, to reject the goods. This 
 right continued in this case, notwithstanding the delivery 
 of the barley at the railroad company's freight-house. On 
 September 9th the buyer became bankrupt, and on the 11th 
 the seller notified the station-master not to deliver the bar- 
 ley to the buyer nor to his assignee. 
 
 The court held that there was no acceptance sufficient to 
 satisfy the statute of frauds. The most that could be said 
 was, there was a receipt. But as the carrier had no implied 
 authority to accept, there was no acceptance. 
 
 1 38 Law Times R. (N. S.), 204. 2 6 B. & S., 436. 
 
CHAPTEE XYI. 
 
 OF SYMBOLICAL OR CONSTRUCTIVE DELIVERY. 
 
 § 326. Rule of constructive delivery in the several states. 
 326a. A question for the court. 
 
 327. When will a symbolical delivery satisfy the statute of frauds. 
 
 328. Example of constructive delivery, with right to retain the whole 
 
 until part purchased is separated. 
 
 329. Assumption of control over the property by the vendee, where 
 
 its removal is impracticable, satisfies the statute. 
 
 330. Instance of symbolical delivery in the sale of a stock of goods, by 
 
 delivery of the keys ; Gray v. Davis. 
 
 331. Another example; order on warehouseman where the goods 
 
 sold are stored, sufficient to constitute symbolical delivery; 
 Bang & Clopton v. Jarman. 
 
 332. The rule in England as to constructive or symbolical delivery. 
 
 § 326. It may be reasonably deduced from the well con- 
 sidered cases on the subject, that in those states where the 
 provision of the statute of frauds as to acceptance and re- 
 ceipt provides that a sale of goods, chattels, or things in 
 action, for the price mentioned or more, shall be void, "un- 
 less the buyer shall accept and receive part of such goods, 
 or the evidences, or some of them, of such things in action, 1 " 
 a symbolical or constructive delivery would satisfy the 
 statute, provided the minds of the contracting parties meet 
 upon that question, and it is so intended and unequivocally 
 understood between them. 2 
 
 i California, Dakota, New York, 4 E. D. Smith, 168;Waldenu Mur- 
 
 Nevada, Minnesota, Wisconsin, dock, 23 Cal., 540 ; Alderton v. Bu- 
 
 Montana, Wyoming. choz, 3 Mich., 328; Cartwright v. 
 
 2 Parker v. Jervis, 3 Abb. Ct. Phoenix, 7 id., 281; Clark v. Draper, 
 
 App. Dec, 449; Gray v. Davis, 10 19 N. H., 419; Denny v. Williams, 
 
 N.Y.,285; Mechanics', etc., Bank v. 5 Allen, 1; Wilkes v. Ferris, 5 
 
 Farmers', etc., Bank, 60 N. Y., 40; Johns., 335; 3 Com. Law R., 1037, 
 
 Hay den v. Demets, 53 id., 426; 34 as to the rule governing cases 
 
 Super. Ct. R., 344; Carver v. Lane, which involve constructive or sym- 
 
2G4 SALES. [chap. XVI. 
 
 Even in other states such a delivery has been decided to 
 be good and valid. 
 
 . It must appear in all such cases that it was the express 
 intention of the parties so to make the delivery. But the 
 courts are justly careful not to carry the rule too far, for 
 the danger always is that if the principle of symbolical de- 
 livery be carried .beyond reasonable limits it might result in 
 a judicial repeal of the important clause of the statute as to 
 acceptance and receipt. 
 
 Doubtless the leaning of the courts should be in all cases 
 towards the plain and common sense meaning of the stat- 
 ute of frauds. 
 
 § 326a. It is for the court to determine whether the 
 evidence of a constructive delivery of goods is sufficient to 
 satisfy the statute of frauds. And likewise its province 
 to withhold the evidence from the jury when it is not such 
 as can in law warrant finding an acceptance ; though there 
 be a scintilla of evidence tending to show an acceptance, the 
 court might still feel bound to set aside the verdict. 1 
 
 § 327. If an article is ponderous and not susceptible of 
 manual custody, a symbolical or constructive delivery will 
 be equivalent in its legal effect to an actual delivery and 
 receipt. Thus, in the sale of an article of such a character, 
 when the seller has done everything contemplated by the 
 contract, and which under all the circumstances could be 
 done to deliver it, the buyer having unequivocally accepted 
 such acts of the seller, the statute of frauds is satisfied. 2 
 
 It should be constantly borne in mind that there is a dis- 
 
 bolical delivery. See, also, Auden- 47 N. Y., 449; Story on Sales, sec. 
 
 reidw. Randall, 3 Clifford, C. 0. R., 311; Kealy v. Tenant, 13 Ir. C. L. 
 
 104; Leonard v. Davis, 1 Black (U. R., 394. 
 ■ S.), 476 ; Wyoming National Bank 2 Mueller v. Guye, 12 Mo. App. 
 
 v. Dayton, 102 U. S., 59. R., 589; Leisherness v. Berry, 38 
 
 1 Browne, St. Frauds, sec. 321; Me., 83; Bethel Steam Mill Co. v. 
 
 Benjamin on Sales, sees. 148, 149, Brown, 57 id., 9; Adams v. Foley, 
 
 163 and 175 ; Denny v. Williams, 5 4 Clarke (Iowa), 52 ; Montgomery 
 
 Allen, 5; Howard v. Borden, 13 v. Hunt, 5 Cal., 366; Ricker v. 
 
 Allen, 299; Caulkins v. Hellman, Cross, 5 N. H., 571. 
 
OHAP. XVI.] SYMBOLICAL OB CONSTRUCTIVE DELIVEEY. 265 
 
 tinction between a sale and a contract of sale. Hence, a 
 mere contract to sell, without any acts of delivery either 
 actual or symbolical, will not pass the title to the property. 1 
 And in every case, whether the acts and circumstances 
 constitute a constructive or symbolical delivery, it is a ques- 
 tion of fact for the jury. 2 
 
 The pointing out a quantity of logs afloat in a boom has 
 been held sufficient. For it was equivalent in its legal effect 
 to an actual delivery, as it was such as the nature of the 
 case admitted of. 3 
 
 § 328. A rule of interpretation has been adhered to in 
 some of the more recent cases which admits of a construct- 
 ive or s} T mbolical delivery. But these cases do not come 
 up to dispensing with acts of the parties as a requisite to 
 satisfy the statute of frauds. 
 
 In Lamprey v. Sargent, 4 the plaintiff, by a written bill of 
 sale, bought of the defendant " six holes " of hard brick. 
 The brick were, at the time, in six holes, but intermingled 
 with a quality known as " light red brick." On the same 
 day the plaintiff took two bricks, and in a day or two 
 thereafter four thousand bricks from the six holes. Upon 
 these facts it was held that there was a constructive deliv- 
 ery to the plaintiff of the six holes of brick, with the right 
 to retain the possession of the whole for a reasonable time, 
 to enable him to select therefrom the hard bricks and leave 
 the light red for the vendor; that it was an executed sale 
 as between the parties, and passed the title to the hard 
 bricks to the plaintiff. 5 
 
 In general it is held that in case of a sale of a part of an 
 entire mass of goods, such as flour, grain, brick or coal, if 
 
 iPenniman v. Hartshorn, 13 3 But if the article be capable of 
 
 Mass., 87. convenient manual delivery, the 
 
 2 Pinkham v. Mattox, 53 N. H., rule is otherwise. Solomons v. 
 
 605 ; Frostburg Mining Company v. Chesley, 58 N. H., 238. 
 
 New England Glass Company, 9 4 58 N. H., 241, Bingham, J. 
 
 Cush., 118; Edin v. Dudfield, 1 Q. *>Page v. Carpenter, 10 N. H., 
 
 B., 302; Jewett v. Warren, 12 77. 
 Mass., 300. 
 
266 SALES. [chap. XVI. 
 
 the purchaser is allowed to take possession of the whole so 
 that he may separate the particular part sold, the title to 
 that part passes to the purchaser, and he may retain the 
 whole until he has had a sufficient opportunity to separate 
 and take the part belonging to him. 1 
 
 § 329. In Cook v. Mann, 2 Elbert, 0, J., correctly states 
 the rule as to what will be deemed a sufficient delivery in 
 certain cases, thus: "When the subject of the sale does not 
 reasonably admit of an actual delivery, it is sufficient if the 
 vendee assume the control and dominion of the property so 
 as reasonably to indicate to all concerned the change of 
 ownership." 
 
 The case of goods in a warehouse, brick in a kiln, and 
 lumber in a raft, are familiar illustrations where removal is 
 not impossible, but unusual and out of the regular course 
 of trade. 
 
 In such cases, if there is a full surrender upon the part 
 of the vendor, and a full assumption upon the part of the 
 vendee of the control and dominion of the subject of the 
 sale, the delivery is sufficient and satisfies the statute. 
 
 There was one Haywood in business at 228 F. street. 
 On December 31, he sold his stock of boots and shoes to 
 Mann. An invoice was made and delivered on that day, 
 and next day Mann took possession. He immediately put 
 his sign, " J. 0. Mann & Co.," over the door, and continued 
 business there about two months and then moved his goods 
 to 284 F. street, where he continued business for two or 
 three months under the same firm name, when they were 
 attached as the goods of Haywood. During all this time 
 his control over the goods was such as is usual with persons 
 engaged in merchandising in their own name. All the in- 
 
 i Story on Sales, 314, n. 3; Weld zies v. Dodd, 19 "Wis., 343; Doug- 
 
 v. Cutler, 2 Gray, 195; Damon v. lass v. Garrett, 5 id., 85; Cotterill 
 
 Osborne, 1 Pick., 476; Crofoot v. v. Stevens, 10 id., 422; Lunn v. 
 
 Bennett, 2 N. Y., 258. Hoag, 31 id., 087; and Bossinger v. 
 
 2 2 Col. Law Jour., 286. See, also, Spangler, 10 Pacific R., 809, a Col- 
 on the same general question, Claf- orado case, 
 lin v. Rosenberg, 42 Mo., 439; Men- 
 
CHAP. XVI.J SYMBOLICAL OB CONSTRUCTIVE DELIVERY. 267 
 
 dicia of ownership usual in mercantile business were pres- 
 ent. 
 
 The court found no difficulty in saying in this case " that 
 the requirements of the statute were fully satisfied." 
 
 § 330. Gray v. Davis l was an action to recover the price 
 of a stock of goods. The pivotal question was, whether 
 there had been an acceptance and receipt, symbolical or 
 constructive. 
 
 The stock consisted of umbrellas, which were in the first 
 and third lofts of the store. The bargain was made at 
 noon on the 1st of April. In February previous, the ap- 
 pellant had taken an inventory of the stock, which was 
 examined by the respondent. The sale was to be on a credit 
 of " twelve months," and the respondent was to take the 
 two lofts in which the goods were. 
 
 "When the verbal agreement was made, the appellant told 
 the respondent to " consider the goods and premises his at 
 once;" to which he responded, " I cannot attend to it now, 
 but will come at 4 o'clock and take possession and in- 
 ventory the stock. " During the interim, the appellant, 
 with the assent of the respondent, delivered to a customer 
 certain umbrellas which had been previously sold. 
 
 At the hour appointed, the parties met at the store and 
 took an inventory, the respondent and the clerk of the 
 appellant calling off the goods, and the appellant taking an 
 account of them. The caption of this inventory read: 
 "Me. Charles Davis, 
 
 Bought of E. 0. Gray." 
 The stock was taken, the prices put down from the inven- 
 tory of February, except the umbrella frames which were up 
 stairs. They were not counted, but taken down from the 
 February inventory, and it was agreed that the respondent 
 should count them afterwards, and if he found any error, 
 it should be corrected. The respondent made no objection 
 to the inventory, and requested the appellant to give him a 
 copy of it in the morning. 
 
 1 10 N. Y. Eep. 286, Court of Appeals, 1851. 
 
268 SALES. [CHAP. XVI. 
 
 The appellant then directed the clerk to hand the keys of 
 the store to the respondent ; but the latter said he did " not 
 want to take them till morning; that his rent was not to 
 commeDce till then, and that he had no insurance.'' The 
 appellant replied: "I will give you my policies of insurance 
 on the stock." The respondent then directed the clerk to 
 -'take the keys for him till morning, and the clerk did so. 
 The sign of Gray was then taken down in the presence of 
 Davis. 
 
 Next morning Davis refused to take the stock. On these 
 facts, the judge at the trial ruled that there was not suffi- 
 cient evidence of delivery and acceptance to submit the 
 question to the jury, and ordered judgment for the de- 
 fendant. 
 
 On appeal, the general term of the court of common 
 pleas, Woodruff, J., held that, as something remained to be 
 done, there was no delivery, and cited Rapelye v. Mackie, 1 
 where weighing and designation of the particular bales re- 
 mained to be done by the vendor; Outwater v. Dodge, 3 
 where transportation and inspection of the fish sold re- 
 mained to be done by the vendor ; "Ward v. Shaw, 3 where 
 slaughtering and weighing the cattle sold remained to be 
 done by the vendee, to ascertain the price, etc. ; and An- 
 drews v. Dietrich, 4 where the vendee was to measure and 
 cut off the desired quantity of carpeting. 
 
 After declaring that " the acceptance must be final, com- 
 plete and irrevocable," and that the goods must come into 
 the absolute possession of the purchaser, citing Story on 
 Sales, 5 and Shindler v. Houston, 6 he held that the case was 
 correctly disposed of at the trial, and affirmed the judg- 
 ment. 
 
 ■ But the court of appeals decided that the general term 
 erred, not so much in taking the case from the jury, as in 
 deciding that there was not a delivery and acceptance. 
 
 i6Cowen, 250. 4 14 Wendell, 31; Dormer v. 
 
 2 7 Cowen, 85. Thompson, 2 Hill, 137. 
 
 37 Wendell, 404. 5S ect ions 275, 280. 
 
 6 1 Comstock (N. Y.), 265. 
 
CHAP. XVI.] SYMBOLICAL OE CONSTRUCTIVE DELIVERY. 269 
 
 The opinion of the appellate court 1 rested upon the fact 
 that, after the taking of the inventory, all that remained 
 to be done to render the delivery and the acceptance of the 
 stock of goods perfect was to hand the respondent the 
 keys and for him to receive them, both of which were done. 
 It was the only remaining act which could be done to com- 
 plete the business. That the parties themselves so consid- 
 ered it; for when it was done, the appellant's sign was 
 taken down in the presence of the respondent, and without 
 objection from him. 
 
 Clearly the minds of the parties met on the matter of 
 the contract; they agreed in all respects as to the inven- 
 tory, the price, and the terms of sale ; and the deliver} 1 - and 
 acceptance of the keys, under the existing circumstances, 
 was in itself sufficient to take the case out of the statute of 
 frauds. 2 
 
 § 331. An interesting case involving the question of 
 symbolical delivery is that of King & Clopton v. Jarman. 3 
 
 There Jarman, the plaintiff, recovered a judgment against 
 King & Clopton in an action for the price of six bales of 
 cotton claimed to have been sold to them, but which was 
 denied. 
 
 The defendants appealed. They were merchants and 
 cotton buyers at Helena. They kept an account with Jar- 
 man, who was a customer. Jarman had six bales of cotton 
 in a warehouse there for sale which had been weighed and 
 
 1 Paige, McCoun and Jewett con- repository were delivered and it 
 curred; Gardiner, J., writing a was held a sufficient delivery ; Vin- 
 short opinion, held that "the ing v. Gilbreth, 39 Me., 496; Pack- 
 question of delivery should have ard v. Dunsmore, 11 Cush., 282; 
 been submitted to the jury." Rug- Lud wig v. Fuller, 17 Me., 166; Ellis 
 gles, J., was for affirmance, for v. Hunt, 3 T. R., 464; Chaplin v. 
 the reasons given by the court be- Rogers, 1 East, 192 ; Wilkes v. Fer- 
 low; Gray, J., took no part in the ris, 5 Johns., 335; Chappelu. Mar- 
 decision, vin, 2 Aiken, 79; Calkins v. Lock- 
 
 2 See 2 Kent's Comra., 4th ed., wood, 17 Conn., 164; Stinson v. 
 
 500, and cases there cited. In Clark, 6 Allen, 340. 
 Parker v. Jervis, 3 Abb. Ct. App. 3 35 Ark. R., 191. 
 Dec, 449, where the keys of the 
 
270 SALES. [chap. XVI. 
 
 marked for identification. He produced samples of the cot- 
 ton taken February 15, 1877, to Clopton, who made him an 
 offer to purchase the cotton at a certain price, which offer 
 was accepted. The price was ten and one-half cents for 
 three bales, and eleven and three-fourths cents per pound 
 for the other three. 
 
 The following order on the warehouseman was given : 
 " Helena, Ark., February 15, 1877. 
 
 "Messrs. Paul F. Anderson & Co. will deliver my six 
 bales of cotton to Messrs. King & Clopton, three bales 
 marked ' A. G. J. (S.),' and three bales ' S. M. E.' 
 
 " A. Gr. Jaeman." 
 
 He told Clopton he could find the weights on the bales, 
 and to place the amount of the sale to his credit, to which 
 Clopton replied: "Very well. All right. I will send Dick 
 Cook down to attend to it." On this point the evidence 
 was somewhat conflicting. During that night the ware- 
 house was destroyed by fire, and only one of the bales in 
 question was saved. 
 
 The appellants claimed that the verdict was against the 
 law and evidence, and void under the statute of frauds. 
 
 The case turned principally on the point whether there 
 had been an acceptance and receipt of the cotton by King 
 & Clopton, by symbolical delivery. 
 
 The court, Eakin, J., said : " With regard to bulky ar- 
 ticles, or those not immediately accessible, symbolical de- 
 livery, by something which may be proved in pais of a 
 satisfactory nature, satisfies the reason and policy of the 
 statute." ' 
 
 As to the title passing, he said : " Where the minds of 
 the parties have assented to the present purchase and sale 
 of a specific chattel, which may be clearly identified, and 
 
 iPuckett v. Read, 31 Ark., 132; of sale the property vests in the 
 
 Little Rock & Fort Smith Railway vendee, or remains in the vendor, 
 
 Co. v. Page, 35 id. (1 Turner), 315 ; is, could the vendee recover the 
 
 Pierce v. Lyman, 28 id., 554. The property from the vendor, 
 test as to whether upon a contract 
 
CHAP. XVI.] SYMBOLICAL OE CONSTRUCTIVE DELIVERY. 271 
 
 separated from other property, aad the sale be dependent 
 on no conditions nor contingencies, and such possession be 
 given as the nature of the subject and the situation of the 
 parties with regard thereto will permit of, and the vendor 
 has done all that is required of him with respect to the 
 property, the title will pass. And this will be so, notwith- 
 standing something may be still necessary, on the part of 
 the vendee, to ascertain the exact price. That, where this 
 is intrusted to the vendee, it is a matter of confidence not af- 
 fecting the sale. 
 
 " One may sell and transfer to another a specific lot of neat 
 cattle, for instance, to be paid for at so much per pound 
 when butchered and sold; or a hogshead of meat, to be 
 weighed by the vendee on taking it to his house, aud paid 
 for by the pound at a fixed rate. These things enter into 
 the daily course of traffic, and it would be highly embar- 
 rassing to hold that, in such case, title did not pass to the 
 vendee until all should be done by both parties to fix quan- 
 tity, quality or price." 
 
 The court accordingly affirmed the judgment. It is al- 
 ways sufficient if the agreement be definite and uncondi- 
 tional, and everything has been done in pursuance of it,' on 
 the part of the vendor, which may be necessary to identify 
 the property, and separate it from others, so as it may be 
 known what, specifically, has been sold. 
 
 § 332. Although constructive, the acceptance must be 
 unequivocal ; as by delivery of the key of the warehouse in 
 which the goods are stored, since the larger the bulk the 
 more impracticable it is that there should be a manual re- 
 ceipt. In the nature of things there must be a constructive 
 delivery. 1 And in almost every case it is a question for the 
 
 !Maberly v. Shepperd, 10 Bing., 426; Tucker v. Ross, 19 TJ. 0. Q. 
 
 101; Chase v. Willard, 57 Me., B., 395; Doyle v. Lasher, 16 U. C. 
 
 157; Boynton v. Veazie, 24 id., C. P., 263; McMartin v. Moore, 
 
 286; Shurtlifftf. Willard, 19 Pick., 27 id., 397; Waldron v. Murdock, 
 
 210; Jevvett v. "Warren, 12 Mass., 23 Cal., 540, where sheep were 
 
 300; Russell v. O'Brien, 127 Mass., branded; see Barney v. Brown, 2 
 
 349; Hatch v. Lincoln, 12 Cush., Vt, 374, where it was held not a 
 
 31; Hayden v. Demets, 53 id., sufficient constructive delivery. 
 
2^2 SALES. [chap. XVI. 
 
 jury whether, under all the circumstances, the acts which 
 the buyer does or forbears to do amount to an acceptance, 
 or otherwise. 1 
 
 It seems to be settled that there cannot be any accept- 
 ance unless there has been such a delivery on the part of 
 the purchaser as to deprive the seller of his right of lien. 2 
 Whether the dealing must also have been such as to deprive 
 the buyer of any right to object to the quality or quantity 
 of the goods, some difference of opinion seems to prevail in 
 the cases. 3 
 
 And as to the distinction between acceptance and receipt 
 in such cases, see note. 4 
 
 1 Morton v. Tibbett, 15 Q. B., 441. A., 557; Norman v. Phillips, 14 M. 
 
 2 Smith v. Surman, 9 B. & C. , 577 ; & W. , 277 ; but see late case, Bushel 
 Bill v. Bament, 9 M. & W.,41; v. Wheeler, 15 Q. B., 428, 434, 443, 
 Carter v. Toussaint, 5 B. & A., 855 ; and Parker v. Wallis, 5 E. & B., 26. 
 Dodsley v. Varley, 12 A. & E., 632. ■'Farmer v. Home, 16 M. & W., 
 
 3 Hunt v. Hecht, 8 Exch., 814; 123; Marvin v. Wallis, 6 E. & B., 
 Tempest v. Fitzgerald, 3 B. & A., 734. 
 
 680; Hanson v. Armitage, 5 B. & 
 
CHAPTEE XVII. 
 
 OF CONDITIONAL SALES. 
 
 § 333. The statute of frauds in no wise affects sales made on condition. 
 
 334. Meaning of unconditional and conditional sales. 
 
 335. Title of property remains in vendor until the condition in the 
 
 contract is performed. 
 
 336. The rule held to be inflexible ; Gibbs v. Benjamin. 
 
 337. Example where action could not be maintained. 
 
 338. Another example ; Williams v. Burgess. 
 
 § 333. As has been frequently remarked, the statute of 
 frauds simply affects the mode of proof of contracts falling 
 within it. 
 
 The statute does not affect the validity of conditional 
 sales. The rights of parties under and in relation to them 
 remain the same. Although it is not within the scope of 
 this treatise to touch upon subjects which are not affected 
 by the statute of frauds, it has been thought well to give 
 the general law and meaning of conditional sales, as at 
 least somewhat germane to the subject of this work. 
 
 § 334. Sir Cresswell Oresswell, in Gilmour v. Supple, 1 ob- 
 serves that, " by the law of England, by a contract for the 
 sale of specific ascertained goods, the property immediately 
 vests in the buyer, and a right to the price in the seller, un- 
 less it can be shown that such was not the intention of the 
 parties." This was pronounced by Mr. Justice Blackburn, 
 in The Calcutta Company v. De Mattos, 2 to be " a very ac- 
 curate statement of the law. " 
 
 Such is the law as to sales of specific goods or chattels 
 unconditionally. 
 
 On the other hand, a very clear and elaborate judgment 
 on the law of a sale on conditions was rendered by Mr. Chief 
 
 1 11 Moore, P. C, 566. 2 33 L. J. Q. B., 332, 328. 
 
 18 
 
274: SALES. [chap. XVII. 
 
 Justice Cooley, in "Wilkinson v. Holiday. 1 Therein he said : 
 "Where, under a contract for the purchase of personal 
 property, something remains to be done to identify the 
 propertj', or to put it in condition for delivery, or to deter- 
 mine the sum that shall be paid for it, the presumption is 
 always very strong that by the understanding of the parties 
 the title was not to pass until such act had been fully done 
 and accomplished. But the presumption is by no means 
 conclusive. 
 
 " If one bargains with another for the purchase of prop- 
 erty, and that is done in respect to it which the parties 
 agree shall pass the title, nothing more is generally req- 
 uisite. The question is only one of mutual assent; whether 
 the minds of the parties have met, and b} r their under- 
 standing the purchaser has now become the owner. 
 
 " This is the general rule where the case is not within the 
 statute of frauds. 
 
 " If one purchases gold bullion by weight and receives de- 
 livery before it has become convenient to weigh it, and on 
 the understanding that the weighing shall be done after- 
 wards, there can be no reasonable doubt, unless there are 
 some qualifying circumstances in the case, that the bullion 
 has now become his property and is at his risk." 
 
 § 335. Another succinct and satisfactory definition of a 
 conditional sale is that of Mr. Justice Colt, in Poster v. 
 Eopes. 2 He said : " In the sale of personal property, the 
 general rule of law is, that where, by the terms of the con- 
 tract, the seller agrees to do anything for the purpose of 
 putting the property into a state in which the buyer is bound 
 to accept it, or into a condition to be delivered, the title 
 will remain in him until he has performed the agreement in 
 this respect." After referring to and stating the case of 
 Eugg v. Minett, 3 he adds, " that this general rule will not 
 prevail where, by the terms of the agreement, the title is 
 to vest immediately in the buyer, notwithstanding some- 
 
 133 Mich., 386,388. See Ling- 2 111 Mass., 10. 
 ham v. Eggleston, 27 Mich., 324. » 11 East, 210. 
 
CHAP. XVII.] CONDITIONAL SALES. 275 
 
 thing remains to be done to the goods by the seller before 
 delivery." The intention of the parties as to when the title 
 is to pass is ascertainable only from the terms of the agree- 
 ment, as expressed in the language and conduct of the 
 parties. 
 
 § 336. So also Mr. Justice Kedfield, in Gibbs v. Ben- 
 jamin, 1 has stated the rule of law on this general subject. 
 
 " The principle is well settled," he says, " and uniform in 
 all cases, that when anything remains to be done by either 
 or both of the parties, precedent to the delivery, the title 
 does not pass. And so inflexible is the rule, that when the 
 property has been delivered, if anything remains to.be done, 
 by the terms of the contract, before the sale is completed, 
 the property still remains in the vendor. 
 
 " The contract must be executed, to effect a completed 
 sale, ' and nothing further to be done to ascertain the quan- 
 tity, quality, or value of the property.' " 
 
 In Fuller v. Bean, 2 Bell, J., said: "If the goods are sold 
 by number, weight, or measure, the sale is prima facie not 
 complete till their quantity is ascertained, and if they are 
 mixed with others, not until they are separated and des- 
 ignated." 
 
 § 337. It was held by Denman, J., in Elphick v. Barnes, 3 
 where a horse was sold upon condition that it should be 
 taken away by the buyer and tried by him for eight days, 
 and returned at the end of the time if the buyer did not think 
 it suitable for his purposes, and the horse died on the third 
 day after it was put in the buyer's stable, without any fault 
 of either party, that the seller could not maintain an action 
 for the price as for goods sold and delivered. 
 
 145 Vt., 124; Hutchins v. Gil- Miller v. Bascom, 28 Mo., 352; 
 
 Christ, 23 Vt., 88. Marston v. Baldwin, 17 Mass., 606; 
 
 2 34 N. H., 290. See, also, Adams Herring v. Hoppock, 15 N. Y., 409; 
 
 v. O'Conner, 100 Mass., 515; Stone Connor v. Giles, 76 Me., 132; Eourke 
 
 v. Perry, 60 Me., 48; Dudley v. v. Ballens, 8 Gray, 549; Maynard 
 
 Abner, 52 Ala., 572; Simmons v. v. Anderson, Ct. App., 9 Alb. L. 
 
 Swift, 5 B. & C, 857. Jour., 262; Adams v. Farr, 2 Hun. 
 
 »L. E., 5C.P. D. 321. See, also, 473. 
 Armington v. Houston, 38 VI., 448; 
 
27G SALES. [CHAP. XVII. 
 
 § 338. In the case of "Williams v. Burgess, 1 it appeared 
 that the plaintiff entered into a verbal contract with the 
 defendant to sell him a mare for 201. upon the understand- 
 ing and condition that if the mare should prove to be in foal 
 the defendant would, upon receiving 121., return it on re- 
 quest. The particular event having happened, the plaintiff 
 tendered 121. to the defendant, but he refused to return the 
 mare. 
 
 On these facts it was substantially held that the contract 
 to return the animal, as stated, was not a distinct contract 
 of sale, but a condition of the original sale ; and that the 
 delivery- of the mare to the defendant took the contract out 
 of the statute of frauds, enabling the plaintiff to sue. Pat- 
 terson, J., said : " It is one entire contract, and not two dis- 
 tinct contracts. It is a sale on the terms that the mare and 
 part of the price should be returned on a certain event. -If, 
 indeed, the defendant had agreed to sell to the plaintiff the 
 foal, the case might have been different." 
 
 In all such cases it depends upon the fact whether the 
 transaction is complete in itself to render it an entire con- 
 tract. 
 
 1 10 A. & E., 499. But see "Watts Sage, 67 N. Y., 67 ;"Fay v. Wheeler, 
 
 v. Friend, 10 B. & C, 446, where 44 Vt., 292; Hogar 'v. King, 38 
 
 the bargain was to sell to the Barb., 200; Paige v. Clough, 1 Alb. 
 
 plaintiff a different thing. Browne L. J., 162; Dickinson v. Dickinson, 
 
 on Stat, of Fr., 293; Wooster v. 29 Conn., 600. 
 
CHAPTER XVIII. 
 
 OF RECEIPT OF GOODS BY CARRIER. 
 
 § 339. "When will delivery of goods to a carrier amount to an accept- 
 ance by the vendee. 
 
 340. Proof of acceptance through the carrier must be unequivocal. 
 
 341. An agent or carrier legally authorized may accept goods for the 
 
 vendee. 
 
 342. A delivery of goods under a valid written contract to a carrier 
 
 therein designated will pass the title. 
 
 343. Effect of delivery of goods to carrier before acceptance; the case 
 
 of Rodgers v. Phillips. 
 
 344. The same subject continued. 
 
 345. Under a verbal contract, a delivery of goods to a carrier, or at a 
 
 place designated, does not work an acceptance. 
 
 346. A carrier selected by the purchaser is his agent ; Magruder v. 
 
 Gage. 
 
 347. Delivery to a common carrier sufficient, where the word accept- 
 
 ance does not appear in the statute, as in Iowa; the case of 
 Bullock v. Stcherge. 
 
 348. Of action against carrier. 
 
 349. Where the contract is invalid, right of action against carrier in 
 
 consignor ; otherwise where contract is written ; Keiwert v. 
 Meyer. 
 
 350. Instance of a verbal contract ; Simmons Hardware Company v. 
 
 Mullen. 
 
 351. Another example ; Rindskopf v. De Ruyter. 
 
 352. Where the agent of the purchaser designates the carrier. 
 
 353. Carrier designated by the buyer; may be done by agent. 
 
 354. Case of acceptance without delivery; Grey v. Cary. 
 
 355. Another example ; Allard v. Greasert. 
 
 356. When carrier becomes liable for loss. 
 
 357. Delivery of goods to a designated carrier. 
 
 358. Where there has been a prior acceptance, carrier may recover. 
 
 § 339. In general, the duty of a carrier is simply to re- 
 ceive goods for transportation to the buyer. After goods 
 have been accepted by the buyer a delivery of them to a 
 carrier designated in the contract, a fortiori, to a carrier of 
 the buyer's own selection, will satisfy the statute of frauds. 
 
278 SALES. [chap. XVIII. 
 
 Such delivery is tantamount to an actual receipt, for such a 
 carrier is pro hao vice the buyer's agent. 
 
 But a delivery of goods to a common carrier for trans- 
 portation to the vendee will not in any legal sense consti- 
 tute an acceptance by the vendee. 1 
 
 Eor will a delivery of goods to a carrier selected by the 
 vendor, where it is done in compliance with the terms of a 
 void contract, amount to an acceptance. 
 
 But after goods have been accepted by the vendee, a de- 
 livery of them to a common carrier will be considered a 
 receipt by him. 
 
 These deductions seem to be in harmony with the well- 
 considered cases. And it is for the jury in all such cases 
 to say whether, under all the surrounding circumstances, 
 there has in fact been an acceptance by the buyer. 
 
 § 340. In Johnson v. Cuttle 2 goods were delivered by 
 the plaintiffs to a steamboat line as common carriers, and 
 by them taken from New York to Fall Eiver, and there 
 landed and lodged by them in their warehouse. 
 
 Gray, J., in his opinion, says : " Viewing the facts proved 
 at the trial in the light most favorable to the plaintiffs, it is 
 clear there was no such acceptance and receipt of anj^ part 
 of the goods by the buyer as will satisfy the statute. Mere 
 delivery is not sufficient; there must be unequivocal proof 
 of an acceptance and receipt by him. Such acceptance and 
 receipt may indeed be through an authorized agent. But a 
 common carrier (whether selected by the seller or by the 
 
 i Waldron v. Romaine, 22 N. Y., warded to the vendee, in pursuance 
 
 368 ; Dalton v. Solomon, 3 Bos. & of the terms of a verbal contract of 
 
 Pul. , 582 ; Putnam v. Tillotson, 13 sale, is discussed, and the leading 
 
 Met., 517; Orcutttf. Nelson, 1 Gray, English cases reviewed. For lead- 
 
 536 ; Merchant v. Chapman, 4 Allen, ing decisions in this country on 
 
 362; Strong v. Dodds, 47 Vt, 348; that general subject, see Rodgers 
 
 Benj. on Sales, 181. v. Phillips, 40 N. Y., 519, and Cross 
 
 2 105 Mass., 447; Nicholson v. v. O'Donnell, 44 id., 661; Benjamin 
 
 Bower, 1 El. & El., 173. In Nor- on Sales, 160; Taylor v. Muller, 30 
 
 man v. Phillips, 14 Mees. & Wels., Minn., 343; Atherton v. Newall, 
 
 277, the legal effect of delivery of 123 Mass., 141 ; Spencer v. Hale, 30 
 
 goods at arailway station, to be for- Vt., 315. 
 
CHAP. XVIII.] RECEIPT OF GOODS BY CARKIEK. 279 
 
 buyer), to whom the goods are intrusted ivithout express in- 
 structions to do anything but to carry and deliver them to 
 the buyer, is no more than an agent to carry and deliver the 
 goods, and has no implied authority to do the acts required to 
 constitute an acceptance and receipt on the part of the buyer, 
 and to take the case out of the statute of frauds." 
 
 § 341. Where the carrier or middleman has authority to 
 accept goods for the vendee, and receives them as such 
 agent, that will be tantamount to an acceptance on the part 
 of the principal. 
 
 While under the common law a delivery to the proper car- 
 rier is constructive delivery to the vendee, to render a sale 
 valid under the statute, in the absence of the other requi- 
 sites, there must be a complete delivery, and an authorized 
 and unconditional acceptance. 1 
 
 Hence it follows that, while a receipt of goods by a car- 
 rier, or on board a ship, is a sufficient delivery to the pur- 
 chaser, it is not such an acceptance as will bind the contract ; 
 for the carrier, if he be an agent merely to receive, is clearly 
 not an agent to accept the goods. 2 
 
 Mr. Justice Hubbard, in Snow v. Warner, 3 says : 
 
 " We are fully of opinion that the acceptance must be 
 proved by some clear and unequivocal act of the party to be 
 charged." 
 
 The statute of frauds, under a fair import of its language, 
 requires this, and the construction it has received gives full 
 force to that language. But it does not follow that, to bind 
 the purchaser, the acceptance must be by him personally, 
 for the statute in terms provides that an agent thereunto 
 
 1 Story on Contr., 821; 2 Kent's ^Caulkina v. Hellnian, 47 N. Y., 
 
 Comm., 545; Stubbs v. Lund, 7 449. 
 
 Mass., 457; Whitehead v. Ander- 3 10 Met. (Mass.), 132; Barney v. 
 
 son, 9 Mees. & Wels., 534; Farina Brown, 2 Vt., 374; Spencer v. Hale, 
 
 v. Home, 16 id., 119; Hart v. Bush, 30 id., 314; Gibbs v. Benjamin, 45 
 
 4 Jur. N. S., Q. B., 271 ; Lillywhite id., 130 ; Knight v. Mann, 118 Mass., 
 
 v. Devereaux, 15 Mees. & Wels., 146; Safford v. McDonough, 120 id., 
 
 385; Dilke v. Andrews, 2 Exch., 290 ; Buckley v. Eensselaer Railroad 
 
 29. Company, 71 N. Y., 205. 
 
280 SALES. [chap. XVIII. 
 
 authorized may bind his principal by a memorandum in writ- 
 ing. Hence the conclusion followSj that if the agent can pur- 
 chase for his principal, there existing no prohibitory clause, 
 he may accept and receive property, and thus bind his prin- 
 cipal. All this is in accordance with the rights and duties 
 of principal and agent generally. 
 
 § 342. It may be observed that, if a contract is in writing, 
 a delivery of the goods sold, at the place designated therein, 
 or a shipment of them in accordance therewith, or as spe- 
 cially directed by the vendee, will pass the title without 
 further acts of acceptance or receipt. Accordingly, where 
 a written order for goods is given, so as to take the case out 
 of the statute of frauds, and the vendee directs them to be 
 sent by a particular carrier, the title vests in the vendee im- 
 mediately upon their delivery to such carrier, and he is re- 
 sponsible to the vendor, though the goods be lost by the 
 carrier, and never actually come to the vendee's possession. 
 
 The inference has been drawn from the decisions, that, 
 where. goods are delivered upon a verbal order, the delivery 
 to a common carrier would be such an execution of the 
 agreement on the part of the seller as to preclude him from 
 taking advantage of the statute to reclaim the goods, but 
 that the purchaser might still refuse to execute the verbal 
 agreement ; that he might open and examine the goods, and, 
 after examination, return them. 1 
 
 § 343. The case of Kodgers v. Phillips 2 illustrates the 
 doctrine of delivery to a carrier before acceptance. There, 
 the defendants, at New York, gave a verbal order to the 
 plaintiffs for one hundred and eighty-eight tons of coal, and 
 directed them to deliver the same on board a boat- at Rich- 
 mond, Pennsylvania, in the customary manner. No par- 
 ticular boat was designated. The plaintiffs caused the coal 
 to be loaded on board a boat for transportation to New 
 York, and took a bill of lading for the same. Immediately 
 after the coal was laded (June 26, 1858), the boat sprung a 
 
 iKent v. Hutchinson, 3 Bos. & U0 N. Y., 530. 
 Pul., 233. 
 
CHAP. XVIII.] RECEIPT OF GOODS BY CARRIER. 281 
 
 leak and sunk. Two days afterwards the defendants re- 
 ceived a bill of lading, and an invoice, consisting of an un- 
 scribed bill of the coal. They returned the bill of lading 
 to the plaintiffs, who sent it back to them saying that they 
 "had nothing to do with it." 1 
 
 At the trial the defendants contended that no valid sale 
 was established under the statute, and moved for a nonsuit; 
 this was denied. The court directed a judgment for the 
 plaintiffs, from which judgment and order overruling the 
 exceptions the defendants appealed to the court of appeals. 
 In the appellate court it was held that, up to the time when 
 the coal was lost by the sinking of the boat having it ou 
 board, no act was performed by the defendants from which 
 it could be colorably claimed that they had accepted the coal, 
 or become invested with the title to the same. 
 
 Daniels, J., in delivering the opinion of the court, gives 
 a lucid exposition of the law. After declaring that the con- 
 tract was within the statute ; that nothing had been paid 
 thereon, and therefore void, he says: "Although the 
 plaintiffs did perform all that would have been requisite to 
 transfer the title to the coal to the purchasers, under the 
 well established rule of the common law, it does not follow 
 that what they did would be attended with the same result 
 under the rule prescribed by the statute of frauds. . . . 
 In cases like the present one, it is the statute, and not the 
 common law, that has provided the mode by which the pre- 
 viously void agreement could be rendered legal and binding 
 upon the parties. And that mode must be pursued ; other- 
 wise, the agreement must remain without any binding force 
 upon either of the parties. Until that may be done, the 
 contract must remain entirely optional on the part of each 
 of the parties. Even if the vendors elected to perform it, and 
 deliver the property precisely as they had agreed to, it was 
 
 1 A delivery of a bill of lading W. & O. R. E. Co., 44 N. Y., 136; 
 with the mutual intent to effect a Cayuga County Nat. Bank v. Dan- 
 delivery of the goods will pass the iels, 47 N. Y., 631. 
 title thereto. City Bank v. Rome, 
 
282 SALES. [chap. XVIII. 
 
 still optional with the vendees whether they would receive it 
 or not. And even if the former went so far as to actually 
 deliver it, the vendees still had their election to either receive 
 or refuse it. This resulted from the unequivocal terms made 
 use of in the statute." The statute of frauds requires that 
 the vendees, under such a contract as was shown upon the 
 trial of this cause, should not only receive, but, in addition 
 to that, accept part of the property contracted to be sold to 
 them, in order to render the contract binding. The learned 
 judge enunciated the following sound principle : " Where a 
 valid and subsisting contract for the sale of personal property 
 may be shown to exist, and by its terms the property is to 
 be shipped by the vendor to the vendee, then a delivery of 
 it to a responsible carrier for the vendee, to be carried and 
 delivered to him, will, ordinarily, transfer the title to the 
 vendee and place the property at his risk. But this rule 
 requires that the contract between the parties shall be at the 
 time legal, valid and subsisting." 
 
 The above decision seems also to be in accordance with 
 some of the English cases. 1 
 
 § 344. In Eodgers v. Phillips 2 the court distinguishes 
 that case from Dawes v. Peck, 3 Waldron v. Romaine 4 and 
 Bushell v. Wheeler, 5 where the property contracted to be 
 sold was delivered to a particular carrier designated or se- 
 lected by the vendee. 
 
 The case under review differs from those cases in the cir- 
 cumstance that no such designation was made by the de- 
 fendants. The carrier was selected by the plaintiffs. The 
 defendants in no manner authorized or participated in it, 
 beyond the authority conferred by the terms of their void 
 contract. Being void, the plaintiffs could not avail them- 
 selves of its terras for the purpose of binding or concluding 
 the defendants by what they did under it. 6 Whatever the 
 
 i Dawes v. Peck, 8 T. E., 330. <* g the English cases hold : Han- 
 
 2 40 N. Y., 530. son v. Armitage, 7 Eng. C. L., 191; 
 
 3 8 Term It. , 330. Acebal v. Levy, 25 id. , 170 ; 10 Bing. , 
 
 4 22N. Y., 368. 376; Meredith v. Meigh, 75 id., 
 5 15 Ad. & Ellis, N. 8., 143. 363 (2 E. & B., 364) ; Coats v. Chap- 
 
CHAP. XVIII.] EECEIPT OF GOODS BY CAEEIEE. 283 
 
 plaintiffs did towards the performance of the contract they 
 did for themselves and at their own risk until the defend- 
 ants elected to change the risk and did change it by the ac- 
 ceptance of the property. 
 
 As there was no acceptance by the defendants, the coal 
 continued to be the plaintiffs' property, remaining at their 
 risk, and was their loss when the boat went down. 
 
 In an early case, however, the contrary doctrine was de- 
 clared. 1 But it is now deemed well settled, that, where a 
 contract is void within the meaning of the statute of frauds, 
 a delivery to a common carrier not designated by the vendee 
 for transporting the goods, and in the absence of a special 
 agreement to the contrary, does not constitute an acceptance 
 by the vendee. The goods in such a case remain continu- 
 ously at the risk of the vendor. 2 But it seems to be other- 
 wise if there is a valid contract. 3 
 
 § 315. Thus, in Maxwell v. Brown, 4 the court say: 
 "From the language of this statute it is apparent that 
 when there is no written contract a mere delivery will not 
 be sufficient. There must further be an acceptance by the 
 purchaser, else he will not be bound." 
 
 In Lloyd v. Wright 5 it is said, in the opinion of the court: 
 "The statute requires that the purchaser shall 'actually re- 
 ceive ' the goods. But although goods are forwarded to him 
 by a carrier, by his direction, or delivered abroad, or on 
 board of a ship chartered by him, still there is no actual 
 acceptance to satisfy the act, so long as the buyer continues 
 
 lin, 43 id., 831 ; Farina v. Home, 16 48 Me., 211 ; Howard v. Bordan, 13 
 
 Mees. & W., 119; Hart v. Bush, 1 Allen, 299; Phelps v. Cutler, 4 
 
 Ellis, B. & Ellis, 494; Hunt v. Gray, 137; Denmcad v. Glass, 30 
 
 Hecht, 20 Eng. L. & Eq., 524; Ga„ 637; Ross v. Welch, 11 Gray, 
 
 Holmes v. Haskins, 28 id., 564. 235; Currie v. Anderson, 2 El. & 
 
 iHart v. Satley, 3 Camp., 528; El., 593; Keiwertv. Meyer, 62 Ind., 
 
 Baldey v. Parker, 2 Barn. & Cres., 287 ; Hooker v. Knob, 26 Wis., 511 ; 
 
 37; Spencer v. Hale, 30 Vt., 314. Edwards v. Grand Trunk Railway 
 
 2 In Coombs v. Bristol & Exeter Company, 54 Me., 105. 
 
 Railway Company, 3 Hurl. & 3 Bacon v. Eccles, 43 Wis. , 227 ; 
 
 Norm., 510, this subject is consid- Strong v. Dodds, 47 Vt., 348. 
 
 ered at length ; Peters v. Bollastier, * 39 Me., 98. 
 
 3 Pick., 495; Goddard v. Demerrit, 5 25 Ga., 215. 
 
284: SALES. [CHAP. XVIII. 
 
 to have the right either to object to the quantum or quality 
 of the goods." 
 
 The logical conclusion in the case of Kodgers v. Phillips 1 
 is that upon a verbal contract for the sale of goods for 
 more than $50 in value, a delivery of them, in accordance 
 with such contract, to a general carrier, not designated nor 
 selected by the buyer, does not constitute such a delivery 
 or acceptance, under the statute of frauds, as to pass the 
 title to the goods. 
 
 It is well settled that there must be an acceptance by the 
 buyer as well as a delivery by the seller. 
 
 § 346. In Magruder v. Gage 2 the appellants, residents 
 of Annapolis, wrote to the appellees, ice-dealers at Boston, 
 asking them on what terms they would sell them a cargo of 
 ice, and they answered: "For a cargo to be shipped before 
 the 10th of July, we shall charge you $5 per ton, and will 
 get the freight as low as possible." 
 
 Thereupon the appellants directed the appellees to ship a 
 cargo of " one hundred and fifty tons," and to procure the 
 freight as low as possible. Thirteen days thereafter the 
 appellees advised the appellants by letter that they had 
 shipped the ice, and inclosed the bill of lading together with 
 an account for the same, which were received by the appel- 
 lants. The ice was shipped " in good order and condition " 
 on board the schooner " Bio," for Annapolis, to be deliv- 
 ered in like condition to the appellants or to their assigns, 
 he or they paying the freight. The vessel put into New 
 York by stress of weather, but resumed her voyage and 
 reached Norfolk in a sinking condition. The remnant of 
 the cargo was there sold by the captain, and the surplus 
 arising from the sale ($222) handed over to the appellants 
 and by them remitted to the appellees, who refused to re- 
 ceive it. 
 
 This action was brought to recover the value of the 
 
 !40N. Y., 519. InBillin v. Hen- by the purchaser, is not a receipt 
 
 kel, 13 P., 420; Am. Dig., 4, 97, it and acceptance sufficient to satisfy 
 
 seems to be held that 'a delivery of the statute of frauds of Colorado, 
 goods ordered, to a carrier named 2 33 jj^, r^ 344 
 
CHAP. XVIII.] EECEIPT OF GOODS BY CAEEIEE. 285 
 
 cargo. Upon substantially the above facts, the plaintiffs 
 recovered a judgment and an appeal was taken. Eobinson, 
 J., said: "The question as to what acts are necessary to be 
 performed by a vendor under an executory agreement for 
 the sale of unspecified goods, in order to transfer the title 
 to the vendee and subject him to the risk of the carriage, 
 depends entirely upon the agreement, either express or im- 
 plied, between the parties. If the vendor undertakes to 
 make the delivery himself at a distant place, thus assuming 
 the risk in the carriage, the carrier becomes the agent of 
 the vendor, and the property will not pass until the deliv- 
 ery is actually made. On the other hand, if the goods are 
 delivered to a carrier specially designated by the purchaser, 
 he becomes the agent of the latter, and the title to the prop- 
 erty, as a general rule, will pass the moment the goods are 
 dispatched. 
 
 " Should the contract of purchase be silent as to the person 
 or mode by which the goods are to be sent, a delivery by 
 the vendor to a common carrier, in the usual and ordinary 
 course of business, transfers the property to the vendee." 
 
 The judgment of the court below was affirmed. 
 
 This is a clear exposition of the law on this subject and 
 is in accordance with the latest authorities. The contract 
 in this case was valid under the statute of frauds. 
 
 §347. The case of Bullock v. Stcherge 1 presents the 
 question whether or not the "delivery" of goods under a 
 verbal contract of sale, to a common carrier, not designated 
 by the vendee, in the usual course of transportation, is suffi- 
 cient, under the Iowa statute of frauds, to bind the contract. 
 
 It will be observed that the statute of Iowa embraces 
 among other contracts " those in relation to the sale of per- 
 sonal property, when no part of the property is delivered, 
 and no part of the price paid." 
 
 In the statutes of Georgia, Massachusetts and New York, 
 the words " accepted and received" are used, and as ex- 
 
 14 McCrary, 184, District of Iowa; 13 Federal Rep., 345. 
 
286 SALES. [chap. XVIII. 
 
 pounded by the decisions these words mean that in order 
 to dispense with the necessity of any writing the goods 
 must be both accepted and received, and that one or the 
 other is not sufficient. 
 
 It is well settled in the states mentioned above and in 
 England, that the mere delivering of the goods is not suffi- 
 cient under the statute, because the words delivering and 
 received are "correlative terms," and therefore that the 
 goods must not only be " delivered " or " received," but also 
 accepted, in order to comply with the terms of the statute. 
 Hence delivered and accepted are not, according to the de- 
 cisions of the above named states, equivalent terms. 
 
 Love, D. J., says: "But the decisions in England and the 
 states referred to at the same time hold that a delivery to 
 a common carrier, though not designated by the purchasers, 
 is a good and perfect delivery to the latter; and that the 
 carrier is quoad hoc his agent. . . . But these decisions 
 further hold that the common carrier is the agent of the 
 vendee for the purpose of delivery only, and not of ac- 
 ceptance, etc. The common carrier cannot accept for the 
 vendee, because acceptance implies assent that the goods 
 are in accordance with the contract. Acceptance implies a 
 ' mental act." 
 
 It will be also observed that the word "delivery" alone 
 is used in the Iowa statute; nor is there a word in that stat- 
 ute equivalent to " accepted." The learned justice, it would 
 seem, properly assumes that the codifiers were not ignorant 
 of the words " accepted and received," or that the}'' unin- 
 tentionally omitted those words from the statute, and he 
 says: "We must conclude that the word 'accepted' was 
 omitted intentionally, and that the purpose of the legisla- 
 tors was that delivery alone, without 'acceptance,' should 
 be sufficient to dispense with the necessity of writino-." 
 He further says : " Now, delivery to a common carrier is 
 not only an open and visible act, calculated to satisfy the 
 policy of the statute, but is ordinarily susceptible of more 
 satisfactory proof than a delivery direct to the vendee, 
 
CHAP. XVIII.] EECEIPT OF GOODS BY CAEEIEE. 287 
 
 since, in many cases, the vendee would be the only witness 
 of delivery to him, while delivery to a carrier would al- 
 ways be proved by many disinterested witnesses." The 
 able decision of the learned justice is richly laden with au- 
 thorities and cases, and is a clear exposition of the law 
 under the Iowa statute of frauds. 
 
 § 348. A consignor ma}'' maintain an action against the 
 carrier to recover for the loss of goods. Although in gen- 
 eral, where goods are delivered to a carrier, the consignee is 
 the proper person to bring the action against the carrier for 
 their loss, yet, if the consignor makes a special contract 
 with the latter for the carriage, such a contract supersedes 
 the necessity of showing the ownership in the goods, and 
 the consignor may maintain the action, although the goods 
 were the property of the consignee. 
 
 In Dunlop v. Lambert l the lord chancellor said : " It is 
 no doubt true, as a general rule, that the delivery by the 
 consignor to the carrier is a delivery to the consignee, and 
 that the risk is, after such delivery, the risk of the consignee. 
 This is so, if, without designating the particular carrier, the 
 consignee directs the goods shall be sent by the ordinary 
 conveyance. The delivery to the ordinary carrier is then a 
 delivery to the consignee, and the consignee incurs all the 
 risk of the carriage." 2 
 
 § 349. In Keiwert v. Meyer, 3 Perkins, J., delivering the 
 opinion of the court, says : " The vendor, being chargeable 
 in law with knowledge of the invalidity of such contract or 
 order, who delivers the goods to the carrier upon it, takes 
 the risk of their acceptance by the vendee on arrival." 
 
 And quotes with approval from the decision in Krulder 
 v. Ellison, 4 to the effect that where the contract of purchase 
 and sale is not valid or complete by reason of the statute 
 of frauds, the goods being over the value of £10, and the 
 
 1 6 Clark & Fin., 600. 3 62 Ind., 592; Hausman v. Nye, 
 
 2 Blanchard v. Page, 8 Gray, 281, 62 Ind. , 486. 
 Shaw, C. J., a case analogous to *47 N. Y., 36. 
 the above. 
 
288 SALES. [CHAP. XVIII. 
 
 title, therefore, still vests in the consignor, though the 
 goods have been delivered to the carrier, no acceptance, and 
 all still vesting [resting?] in parol, the action must be 
 brought by the consignor. 1 But all the judges, in delivering 
 opinions, admitted the rule to be, that the consignee must 
 have brought the action had the order oeen in writing, and the 
 sale valid. The question was whether the property passed 
 to the vendee. If it did, he must sue. 
 
 § 350. The most recent case in Minnesota, upon the ques- 
 tion of delivery, is that of The Simmons Hardware Com- 
 pany v. Mullen. 2 
 
 The action was for conversion. The goods had been 
 taken by the sheriff under an attachment against one 
 Whitcher. On the trial it was found as a fact that Whit- 
 cher ordered the goods from the plaintiff verbally, and that 
 they were shipped to him at Granite Falls, where they 
 arrived and were stored in the warehouse of the railroad 
 company which transported them; that they were never 
 called for or demanded in any manner by Whitcher ; that 
 about that time he sold out and left the state ; and the de- 
 fendant levied upon the goods as the property of Whitcher. 
 Judgment was rendered for the plaintiff and the defendant 
 appealed. 
 
 The price of the goods was over $50; there was no memo- 
 randum in writing, nor any part of the purchase money paid. 
 
 The court, Gilfillan, 0. J., decided that unless there was 
 a delivery by the vendor and an acceptance by the vendee, 
 the agreement for the sale of the goods was void under the 
 statute of frauds. That the authorities are substantially 
 uniform in holding that a delivery by the seller to a carrier 
 selected by him, for the purpose of transportation, is not of 
 itself an acceptance by the vendee so as to take the case out 
 of the operation of the statute. 
 
 1 Coombs v. Bristol & Ex. R. Co., Van Vechten, 20 Mich., 410 ; Han- 
 3 Hurl. & Nor. , 510. son v. Armitage, 5 Barn. & Aid., 
 
 2 38 Minn. , 195 ; Taylor v. Mueller, 557. 
 30 id., 343. See, also, Grimes v. 
 
CHAP. XVIII.J EECEIPT OF GOODS BY OAEEIEB. 289 
 
 § 351. In Rindskopf v. De Ruyter l it appeared that the 
 plaintiffs were in trade at Milwaukee, Wisconsin ; they sold 
 certain liquors to the defendant doing business in Grand 
 Rapids, Michigan. This was an action to recover a balance 
 claimed to be due thereon. Three principal objections were 
 interposed by the defendant: 
 
 1. That the agreement was entered into in Michigan and 
 therefore void under Compiled Laws, section 2137. 
 
 2. That the defendant had the right to examine the goods 
 and return them if not as represented ; and that the sale was 
 made in Michigan. 
 
 3. That if it was a "Wisconsin contract the same was void 
 under the statute of frauds. 
 
 The referee found that the defendant gave to the plaint- 
 iffs' agent, at Grand Rapids, a verbal order for certain 
 liquors ; that the sale was to be on ninety days' credit, and 
 the defendant was at liberty to return the liquors if not as 
 represented ; that the agent was to submit the order to the 
 plaintiffs, and if it met their approval the goods were to be 
 sent. The court said : " This finding brings this case clearly 
 within the decisions of this court in Kling v. Fries 2 and 
 Webber v. Howe,' and disposes of the first objection;" and 
 held, that the agreement must be considered as made in the 
 state of Wisconsin and not in Michigan. The second ob- 
 jection was held to be untenable. 
 
 As to whether the contract was void under the statute of 
 frauds of Wisconsin, the court said that such a sale is void 
 unless the buyer shall accept and receive part of said goods, 
 or the evidences or some of them. 
 
 The goods were shipped by the plaintiffs at Milwaukee 
 to Grand Rapids by boat, at the defendant's risk, he to pay 
 the freight. An acceptance by the vendee was necessary 
 to make the contract binding. 
 
 139 Mich., 1. v. Brewing Co., Sup. Ct. Michigan, 
 
 2 33 Mich., 275. January, 1876; 13 Alb. Law Jour., 
 
 S36Mioh.,154. See, also, Eoethke 183. 
 19 
 
290 SALES. [chap. XVIII. 
 
 The only act of receipt and acceptance in "Wisconsin was 
 by the carrier. He received the goods simply for transpor- 
 tation to Michigan. His acts, it was decided, were not of 
 force to work a binding transfer and make out an obliga- 
 tory sale in Wisconsin against the statute of frauds of that 
 state. 
 
 § 352. In Silver v. Bowne 1 a contract was made whereby 
 one Nichols was requested to go to Tivoli and buy a cargo 
 of hay for the defendants ; he did so and bought the hay of 
 the plaintiffs. The testimony tended to show that it was 
 understood between the parties that the hay should be sent 
 upon the barge " Erie." The barge' was owned by the de- 
 fendants and Nichols. After the hay was laded upon the 
 barge and receipted for by Nichols it was lost by the sink- 
 ing of the barge. 
 
 A motion to nonsuit on the ground that there was no de- 
 livery was denied. The delivery was held sufficient. On 
 appeal it was urged that if there was a delivery there was 
 no acceptance. The court conceded that the point was not' 
 free from difficulty, but as it was not presented by any ex- 
 ception in the case, it was not considered. 
 
 § 353. The law is well settled that, where there' is a 
 valid and subsisting contract between the parties, a deliv- 
 ery of the goods under it to a responsible common carrier, 
 or to a carrier specially designated by the buyer for trans- 
 portation, constitutes a receipt and a transfer of title to 
 the buyer. 
 
 Some cases have held that a delivery of goods to a car- 
 rier designated by the vendee is of the same legal effect as 
 a delivery to the vendee himself. 2 But contrariwise, where 
 the carrier is selected by the vendor ; for the delivery to 
 such a carrier, in no legal sense, constitutes an acceptance 
 by the vendee so as to exclude the case from the operation 
 
 1 55 N. Y., 659. Strong v. Dodds, 47 Vt., 348; Cross. 
 
 2 Orcutt v. Nelson, 1 Gray, 536; v. O'Donnell, 44 N. Y., 661. 
 Merchant v. Chapman, 4 Allen, 362 ; 
 
CHAP. XVIII.] EECEIPT OF GOODS BY OAEEIEE. 291 
 
 of the statute of frauds. 1 These rules seem to be uniformly 
 applied. 2 
 
 " It is not necessary that the purchaser should employ 
 the carrier personally, or by some other agent than the 
 vendor. "We see no reason why a delivery to a warehouse- 
 man should not have the same effect." 3 
 
 So the delivery of goods in pursuance of an order to a 
 common carrier constitutes an actual delivery to the vendee. 
 But it should be borne in mind that the carrier not desig- 
 nated by the vendee simply represents the vendee for the 
 purpose of receiving the goods for transportation, not for 
 accepting the goods. The carrier in such case, in law, is 
 the bailee of the person to whom, not by whom, the goods- 
 are sent. 
 
 § 354. In Grey v. Cary 4 there was an acceptance but no 
 receipt of the property. 
 
 The defendants selected, and agreed to purchase of the 
 plaintiffs at a price more than $50, a certain scale of the 
 Fairbanks patent. As no memorandum of the bargain 
 was subscribed by the defendants, the contract was void 
 unless actual receipt could be shown. The scale was se- 
 lected by the defendants, and in that respect there was an 
 acceptance. It was to be paid for on delivery. The car- 
 man who undertook to deliver it was the servant of the 
 plaintiff. Upon reaching the defendants' place of business, 
 he handed them the bill, and was told to drive into the 
 back yard with the scale. In attempting to do so he acci- 
 dentally caused the scale to be broken. 
 
 Yan Hoesen, J., at the general term of the court of com- 
 
 1 The same point arose, under Barb, 9 ; Johnson v. Dodgson, 2 M. 
 
 slightly different circumstances, in & W., 653; Cusack v. Eobinson, 1 
 
 Frostburg Mining Co. v. N. E. Glass B. & S., 299, and 30 L. J. Q. B., 261. 
 
 Co., 9 Cush., 115; Meredith v. 2 Johnson v. Cuttle, 105 Mass., 
 
 Meigh, 75 Eng. C. L., 363; Castle 447; Grimes v. Van Vechten, 20 
 
 v. Sworder, 5 Hurl. & Nor., 281. Mich., 410. 
 
 See, also, Foster v. Rockwell, 104 3 Hunter v. Wright, 12 Allen, 548. 
 
 Mass., 167, 172; Cobb v. Arundell, 4 9 Daly, 363; Benjamin on Sales, 
 
 26 Wis., 553; Everett v. Parks, 62 181. 
 
292 SALES. [chap. XVIII. 
 
 mon pleas, said : " Had the scale been delivered to a com- 
 mon carrier, selected by either the plaintiff or the defendant, 
 we should be bound by the authorities to hold that it was 
 received by the defendants. Though a carrier selected by 
 the seller cannot accept goods, so as to take a contract out 
 of the statute of frauds, it is settled that, where a purchaser 
 himself has accepted the goods, a delivery to any common 
 carrier will be regarded as a receipt of the goods by the 
 purchaser." 
 
 Although the authorities are somewhat variant, the 
 above decision is in accordance with the more recent cases 
 and is good law. 
 
 § 355. The case of Allard v. Greasert l furnishes a good 
 illustration of the principle of acceptance without receipt. 
 There, an agent of the plaintiffs, a firm doing business in 
 Eochester, called with samples of goods on the defendants 
 and stated the prices, and they selected certain goods, which 
 in the aggregate amounted to more than $50, though com- 
 posed of many articles of less amount. No memorandum of 
 the contract was subscribed. The goods were agreed to be 
 sold on a credit of " four months," and were to be sent to the 
 defendants by express. After being boxed they were de- 
 livered to the M. U. Express Company and thence trans- 
 ported to the defendants at Medina. The defendants 
 refused to receive the goods, principally on the ground that 
 " one dozen harvest hats differed from the sample," the pur- 
 chase price of which was $4.50. On this ground of defense 
 the plaintiffs were nonsuited. The question for determina- 
 tion on appeal was, whether the goods were accepted and re- 
 ceived by the buyers so as to satisfy the statute of frauds. 
 After citing Kodgers v. Phillips, 2 and Cross v. O'Donnell, 3 
 the court decided that there was no reason for holding that 
 the buyer, in such case, intended to clothe the carrier, of 
 whose agents he may know nothing, with authority to ac- 
 
 » 61 N. T., 2. 341 ; Benj. on Sales, 160 ; Baldey v. 
 
 MON. Y., 519. Parker, 2 B. & C, 41. 
 
 »44 N. Y., 661; Story on Sales, 
 
CHAP. XVIII.] RECEIPT OF GOODS BY CABBIEE. 293 
 
 cept the goods, so as to conclude the buyer as to their qual- 
 ity, and bind him to take them as a compliance with a 
 contract of which such agent was ignorant. 
 
 This case furnishes as good an illustration as any. Earl, C, 
 says: "The goods were boxed; the carrier could know 
 nothing about them; and its agents had no right to unpack 
 and handle them. Its sole duty and authority was to re- 
 ceive and transport them. In such a case it would be quite 
 absurd to hold that the carrier had an implied authority 
 from the buyer to accept the goods for him. If the buyer 
 does not accept in person, he must do it through an author- 
 ized agent." 
 
 The judgment of nonsuit was affirmed. 
 
 § 356. In O'Neill v. New York Central & Hudson Eiver 
 Railroad Company, 1 the question of liability of a common 
 carrier was presented. 
 
 A number of barrels of cider were delivered by one Hill 
 to the defendant for transportation from Fairport to Roch- 
 ester. The barrels were not marked and Hill gave no in- 
 structions as to them; but the agent of defendant was 
 acquainted with the plaintiff and knew his place of business 
 to be at Rochester. 
 
 The action was for damages occasioned by the loss of the 
 goods by fire in the depot. 
 
 Grover, J., delivering the opinion of the court of appeals, 
 considered it well settled that a carrier is responsible as 
 such, only when goods are delivered and accepted by him 
 for immediate transportation in the usual course of business. 
 
 If delivered, awaiting further orders from the shipper be- 
 fore carriage, he is, while they are so in his custody, respon- 
 sible as warehouseman. 2 
 
 The learned judge decided that the defendant was not 
 liable as carrier. 
 
 160 N. Y., 138. ^Rogers v. Wheeler, 53 N. Y., 
 
 262 ; Angell on Carriers, § 129. 
 
2M SALES. [CHAP. XVIII. 
 
 The plaintiff's contract to purchase the cider of Hill was 
 held to be void under the statute of frauds. 
 
 § 357. It is generally held that the acceptanc e and re- 
 ceipt need not be simultaneous, but may take place at dif- 
 ferent times; and where the purchaser has himself inspected 
 and accepted the goods purchased, the delivery of them to 
 a common carrier, or by his direction to a designated car- 
 rier, is a good delivery to the purchaser. 
 
 So, also, it has been held, that where a valid contract of 
 sale is made in writing, a delivery pursuant to such contract 
 at the place agreed upon for delivery, or a shipment of 
 the goods in conformity with the terms of the contract, 
 will pass the title to the vendee without any receipt or ac- 
 ceptance of the goods by him. But if the contract is oral, 
 and no part of the price is paid by the vendee, there must 
 be not only a delivery of the goods by the vendor, but a 
 receipt and acceptance of them by the vendee to pass the 
 title or make him liable for the price ; and such acceptance 
 must be voluntary and unconditional. 1 Even the receipt of 
 goods, without an acceptance, is not sufficient. Some act 
 or conduct on the part of the vendee, or his authorized 
 agent, manifesting an intention to accept and appropriate 
 the goods as a performance of the contract, is requisite to 
 supply the place of a written contract. But where goods 
 are received in order to test them, that will not amount to 
 an acceptance. 
 
 § 358. It will be found by an examination of the authori- 
 ties, that, in most of the cases where a delivery to a carrier 
 has been held to satisfy the statute of frauds, there has been 
 a prior acceptance of the goods by the buyer or by his au- 
 thorized agent. A buyer may accept and receive through 
 an agent expressly or impliedly appointed for that purpose. 
 
 There is every reason for holding that a designated car- 
 
 iCaulkins v. Hellman, 47 N. Y., ten, 20 id., 413, 420; Bacon v. Ec- 
 452. See, also, Chamberlin v. Dow, cles, 43 Wis., 227. 
 10 Mich., 319; Grimes v. Van Vech- 
 
CHAP. XVIII. J EECEIPT OF GOODS BY CAEEIEE. 295 
 
 rier may receive for the buyer, because he is expressly au- 
 thorized to receive, and the act of receiving is a mere formal 
 act, requiring the exercise of no discretion. But there is no 
 reason for holding that the buyer, in such case, intended to 
 clothe the carrier, of whose agents he may know nothing, 
 with authority to accept the goods, so as to conclude him as 
 to their quality, and bind him to take them as a compliance 
 with a contract. 
 
CHAPTER XIX. 
 
 OF EAKNEST AND PART PAYMENT. 
 
 359. Early history of earnest. 
 
 360. Word earnest omitted in the statute of certain states. 
 
 361. Examples of earnest given. 
 
 362. Effect of giving earnest or paying part of the price. 
 
 363. Part payment or earnest must be made at the time of the con- 
 
 tract. 
 864. Earnest binds the contract, 
 
 365. Principle of earnest under the common law and the statute of 
 
 frauds. 
 
 366. Words " at the time " are strictly construed. 
 867. Contained in the statute of several states. 
 
 368. An example of subsequent payment of part of purchase money. 
 
 369. Extent of part payment immaterial. 
 
 370. What is payment " at the time ; " Hunter v. Wetsell. 
 
 371. The same subject continued. 
 
 372. Valid contract made by adopting terms of void contract. 
 
 373. Subsequent part payment satisfies the statute of frauds ; early 
 
 case of Thompson v. Alger. 
 
 374. When part payment deemed as made ; when accepted with con- 
 
 currence of parties. 
 875. What will serve in lieu of money as part payment. 
 
 376. Terms of the contract must be restated where payment subse- 
 
 quently made. 
 
 377. Example ; Bissell v. Balcom. 
 
 878. Same subject continued ; minds of the parties must meet. 
 
 879. Another example involving peculiar circumstances ; Paine v. 
 
 Fulton. 
 
 380. Where goods were taken on a contract, but not " at the time." 
 
 381. Deposit not equivalent to part payment. 
 
 382. Where payment was proved. 
 
 383. Goods as part payment, if paid at the time, will satisfy the 
 
 statute ; Dow v. Worthen. 
 
 384. An existing debt as part payment. 
 
 385. Sufficient if evidenced by written memorandum. 
 
 386. Where mutual debts exist. 
 
 387. Words not sufficient to satisfy the statute. 
 888. Part performance may be by either party. 
 
CHAP. XIX. J EARNEST AND PART PAYMENT. 297 
 
 § 389. Agent may receive part payment. 
 
 890. Note of the purchaser not a part payment ; Krohn v. Bantz. 
 
 391. Note of a third person may be taken as part payment ; Ireland 
 
 v. Johnson. 
 
 392. Example where note was given ; Sharp v. Carroll. 
 
 393. Where part payment is made and time extended to pay balance, 
 
 not a new contract. 
 894. Novel case of part payment "at the time" of the bargain; 
 
 Thornborrow v. Whitacre. 
 395. Deductions from the decisions. 
 
 § 359. In the early history of the Northern nations there 
 existed a custom, which was deemed more or less necessary, 
 of the contracting parties shaking hands in signification of 
 the conclusion of the bargain. This was commonly called 
 handsale, — venditio per mutuam manuum complexionem. 
 
 The giving of earnest seems to have followed the hand- 
 sale custom and to have been the outgrowth of it. 
 
 Earnest, under the Roman law, consisted mainly of two 
 kinds : one related to agreements made anterior to the con- 
 tract, whereby a piece of money was given as a considera- 
 tion for the right to purchase. If the bu} r er carried out the 
 bargain the earnest money was deducted from the price; if 
 default was made, the earnest money was forfeited. The 
 other species of earnest was similar to that under the com- 
 mon law. It might consist of any article of value, as a 
 jewel or a ring {anuulus) for example, which the buyer 
 passed over to the seller as a symbol of the consummation 
 of the bargain, argume?itum contractus facti. 1 
 
 Earnest, as may be gleaned from the early authorities, did 
 not form any part of the purchase price. It was given as a 
 token that the bargain had been ratified, and could be 
 proved by parol. 
 
 § 360. Of the custom of giving something in earnest to 
 bind the bargain, Mr. Chancellor Kent says : " It has fallen 
 into very general disuse in modern times, and seems rather 
 
 1 On this subject, see Parsons on on Sales, 195, 196 ; Chase's Black- 
 Contr., vol. 3, pp. 1-60; Home v. stone, 555. 
 Hay ward, 108 Mass., 55; Benjamin 
 
298 SALES. [CHAP. XIX. 
 
 to be suited to the manners of simple and unlettered ages, 
 before the introduction of writing, than to the more precise 
 and accurate habits of dealing at the present day." x 
 
 The word "earnest" has been omitted in the statute of 
 frauds of New York, California, and many other states. If 
 something be given in " part payment " the contract is ren- 
 dered binding. 2 
 
 § 361. Although the custom of giving earnest is anti- 
 quated, a reference to some of the cases and authorities on 
 the subject may not be uninteresting. 
 
 In the early case of Blenkinsop v. Clayton, 3 the buyer 
 drew a shilling across the hand of the seller, which was 
 called " striking off the bargain," but as the coin in that 
 case was not delivered to the seller, the court decided that 
 the statute had not been satisfied. 
 
 In another case, a half-penny, 4 and another, 5 a shilling 
 was given as earnest, and was declared to be sufficient to 
 satisfy the statute of frauds. 
 
 A payment by way of earnest will vest the property in 
 the thing sold. If A. sell a cow to B. and receive part of 
 the price, and the cow die while in the vendor's possession 
 before delivery to the vendee, or payment of the remainder 
 of the purchase money, still the vendor is entitled to the 
 payment of the price, because the payment of the earnest 
 vests the property in the vendee. 6 But if the bargain rest 
 only in a promise to pay, it would be void. 7 
 
 § 362. The statute of frauds of most of the states con- 
 tains a provision to the effect that, unless the buyer at the 
 time of the contract pay some part of the purchase money, 
 or give something in earnest to bind the bargain, it is void. 
 The part payment and earnest are distinct acts independ- 
 
 1 2 Kent's Comm., 495. (1794); Howe v. Smith, 29 Ch. D., 
 
 2 Pierce v. Gibson, 2 Ind., 408. 89; Law Quarterly Review, vol. 1, 
 
 3 7 Taunt., 597; 53 L. J. Ch., p. 17; Artcher v. Zeh, 5 Hill (N. 
 1055; 50 L. T., 573; 32 W. R, 802. Y.), 200; Browne on the Stat, of 
 
 * Bach v. Owen, 5 T. Rep., 410 Frauds, § 341. 
 (1793). 6 2B1. Com., 443. 
 
 5 Goodall v. Skelton, 2.H. Bl., 316 ' Shep. Touchstone, 324. 
 
CHAP. XIX.] EARNEST AND PART PAYMENT. 299 
 
 ent of the bargain, and may be proved by parol evi- 
 dence. 1 
 
 The legal effect of either of these acts, under the rules of 
 evidence, if the minds of the contracting parties have met, 
 is to render the contract obligatory and enforceable by 
 law. 2 
 
 A mere tender of earnest or part payment is not suffi- 
 cient. 
 
 § 363. Some well considered cases hold that earnest, as 
 used in the statute, is to be regarded as equivalent to part 
 payment; yet a technical construction of the terms would 
 seem to imply that earnest means, as originally applied 
 something to bind the bargain; and part payment, an act 
 done after the bargain is closed. 3 
 
 According to the decisions in many of the states, the 
 act of giving something in way of earnest or part pay- 
 ment must take place at the time of the contract. And 
 that a part payment made after the making of the contract, 
 upon the mutual and explicit understanding between the 
 parties that it is to apply to the contract previously entered 
 into, will not validate it, but have the effect of making a 
 new contract; and this has been held even in those states 
 where the statute does not in terms require a part payment 
 to be made "at the time" of the contract. 4 
 
 § 364. While the statute of frauds has given no new effi- 
 cacy to the payment of earnest, it has excepted out of the 
 requisition it has made for written evidence of the contract, 
 the cases wherein earnest has been paid or a part payment 
 made. 
 
 lEIy v. Ormsby, 12 Barb., 570. 8 Howe v. Hay ward, 108 Mass., 
 
 2 Groat v. Gill, 51 N. Y., 431; 54; Dooley v. Brlbert, 47 Mich., 
 Joyce v. Adams, 4Seld., 291; Jen- 615; Bissell v. Balcom, 89 N. Y., 
 
 nings v. Flanagan, 5 Dana, 217 
 
 Edgerton v. Hodge, 41 Vt., 676 
 
 Hawley v. Keeler, 53 N. Y., 119 
 
 Benjamin on Sales, §•$ 357, 193 
 
 Mattice v. Allen, 3 Keyes, 492 ; Bra- 36 Conn. 10, 
 
 bin v. Hyde, 32 N. Y., 519; Walker 
 
 v. Mussey, 16 M. & W., 302. 
 
 275. 
 
 i Jackson v. Tupper, 101 N. Y., 
 515. But see" Hunter v. "Wetsell, 
 57 N. Y., 375; Jackson v. Hubbard, 
 
300 SALES. CHAP. XIX.J 
 
 The statute does not condemn the sale of goods in any 
 case, but requires that if the contract is not evidenced by 
 the requisite note or memorandum in writing, it shall be 
 authenticated by some mutual act of the parties in part per- 
 formance; as part payment, or acceptance and receipt, of 
 jsome part of the goods to validate the contract. 
 • § 365. Of the common law principle of earnest, and the 
 change which the statute of frauds effected, the following 
 example may serve as an illustration: 
 
 If, before the statute of frauds, a man offered to sell his 
 horse for $100, and another offered to buy him at that price 
 and presently tendered the money, the bargain was con- 
 cluded, and the party proposing to sell was not at liberty 
 to dispose of the horse to a new purchaser. But by the op- 
 eration of the statute such owner would be perfectly free to 
 sell the horse to a third person, unless the party first offer- 
 ing to purchase could substantiate the bargain by the pro- 
 duction of a note or memorandum in writing of the bargain, 
 signed by the seller. 1 Or, it may be added, unless he could 
 show a part payment, or earnest-money given to bind the 
 bargain. 
 
 § 366. In general the cases hold that the words " at the 
 time," relating to part payment, should be strictly construed. 2 
 Hence, it follows as a necessary consequence, that a part 
 payment made subsequently to the making of the contract 
 will only make a valid contract as of the time when the 
 part payment is made. And only then where the terms of 
 the former void contract are restated or reaffirmed and mut- 
 ually agreed upon. 
 
 The case of Jackson v. Tupper 3 is quite in point. It was 
 
 1 Eoberts on the Stat, of Frauds, 3 101 N. Y. , 515 : Central Reporter, 
 
 169 ; Alexander v. Comber, 1 H. vol. 2, p. 407, decided March, 1886 ; 
 
 Bl., 20. 2 R. S., 136, sec. 3; Hunter v. Wet- 
 
 2AUis v. Read, 45 N. Y., 142; sell, 57 N. Y., 375; 84 id., 549; Al- 
 
 Fluckner v. United States' Bank, 8 len v. Aquria, 5 N. Y. Leg. Obs. , 
 
 Wheat. R., 363; Kirhof v. Atlas 380; Clarkson v. Carter, 3 Cow., 84. 
 Paper Company, 32 Northwestern 
 Rep., 766. 
 
CHAP. XIX.] EARNEST AND PAET PAYMENT. 301 
 
 conceded in the case that the oral contract of February, 
 1880, for the sale and storage of certain ice, was, -when made, 
 void under the statute of frauds ; and that under the New 
 York decisions it was not validated by the payment made 
 subsequently — in May, 1880. Andrews, J., delivering the 
 opinion of the court, said : " By our statute, payment oper- 
 ates to take an oral contract for the sale of goods for the 
 price of $50 or more out of the statute, only when made 
 at the time of the contract." 
 
 § 367. By the statute of frauds of many of the states 
 there exists no provision, as such, requiring earnest or part 
 payment, or some part of the purchase money, to be made 
 at the time of making the contract. 
 
 But even in those states it seems to be held that earnest 
 must be given or part payment made at the , time the con- 
 tract is made. 1 
 
 In six states, 2 at least, the words " at the time " occur in 
 the statute relating to the sale of goods, etc. 
 
 § 368. In way of illustration of the decisions under this 
 clause of the statute : If a bargain be made by which A. 
 agrees to sell to B. ten barrels of flour at a given price, no 
 part being delivered, and no memorandum in writing sub- 
 scribed, and no earnest given or part payment made by B., 
 it is simply in the nature of an offer. If they subsequently 
 meet, the next day or the next month, and restate or re- 
 affirm the former bargain, and B. then pays to A. a part of 
 the price, then, and at that time, a contract is concluded, and 
 then it is that a contract exists which is valid and binding 
 
 1 Whitwell v. Wyer, 11 Mass., 9; delivery and the payment should be 
 
 12 Met., 435. made at the time of the contract. 
 
 2 California, Minnesota, Nevada, But the legislature modified the 
 
 New York, Oregon and Wisconsin, provision as reported, and adopted 
 
 In the Revised Statutes of New it as it now stands in the statutes, 
 
 York, of 1830, the words " at the The requirement as to time, so 
 
 time " first appeared. far as related to the memorandum 
 
 The revisers in their report to and delivery, was omitted, but was 
 
 the legislature of that state pro- retained as to the part payment. 
 vided that the memorandum, the 
 
302 SALES. [CHAP. XIX. 
 
 under the statute of frauds. The former agreement is not 
 reanimated or revived, but a new contract is then made, 
 which is enforceable by law. 
 
 It is, in substance, held that payment subsequently made, 
 although conforming to the oral agreement, is insufficient 
 of itself to make the prior oral agreement valid. There 
 must be enough in addition to the act of payment, to show 
 that the terms of the prior oral contract were then in the 
 minds of the parties, and were- re-affirmed by them; and this 
 being shovm, a cause of action arises, not on the prior oral 
 contract, but on the new contract made at the tune of pay- 
 ment. 
 
 The plaintiffs here did not bring their case within this 
 principle. There was no restatement of the terms of the 
 prior oral agreement when the payment of May 1, 1880, 
 was made, and no express recognition thereof; nor was the 
 payment made for the avowed purpose of binding the prior 
 bargain. It was expressly found that when the payment 
 was made nothing was said by either party about the con- 
 tract of February 28, 1880, or its terms. And so it was de- 
 clared invalid. 1 
 
 § 369. It may be pronounced as well settled under the 
 decisions in England and in this country, that, as used in 
 the statute of frauds, earnest is equivalent to a part pay- 
 ment. In either case it must be money or something of 
 value, although the amount in money or the extent in value 
 is quite immaterial. 
 
 § 370. The case of Hunter v. "Wetsell 2 is directly in point. 
 
 1 On kindred subjects, see Ather- v. Woodruff, 74 N. Y.. 621 ; Day v. 
 
 ton v. Newhall, 123 Mass., 141; Pool, 52 N. Y.,416; Gaylord Man- 
 
 Townsend v. Hargraves, 118 id., ufacturing Co. v. Alen, 53 N. Y., 
 
 333; Cunningham v. Ashbrook, 20 519. 
 
 Mo., 561, 583; Rickey v. Tenbroeck, 257 n. y., 375 (1867). But see 
 
 63 Mo., 563; Mathiessen & Weich- same case on second appeal to the 
 
 ers Reflector Co. v. McMahon's court of appeals, 84 N. Y., 549; 
 
 Adm'r, 38 N. J. L., 536; Marsh v. Gould v. Town of Oriconta, 71 id., 
 
 Rouse, 44 N. Y., 643; Morrill v. 307;Hawleyu. Keeler, 53 id., 114. 
 Cooper, 65 Barb., 516; Fitzsimons 
 
CHAP. XIX. J EARNEST AND PART PAYMENT. 303 
 
 The action was brought to recover the price of certain 
 hops, alleged by the plaintiff to, have been sold to the de- 
 fendant for $300. 
 
 The only compliance with the statute of frauds claimed 
 in the case was a part payment. No payment was made 
 at the time of the contract, but about a month afterwards 
 the defendant paid $200, and a month after that $100, to 
 the plaintiff. Nothing was said when these payments were 
 made about the hops or the contract, except that the. pay- 
 ments were " made towards the hops," nor was anything said 
 at any time about a renewal, or reaffirmation or restate- 
 ment of the contract. 
 
 Earl, C, delivering the opinion of the court, reviews the 
 authorities, and concludes that this cannot be deemed a 
 payment " at the time," within the meaning of the statute 
 of frauds. A payment not made at the time, he observes, 
 can never, under any circumstances, satisfy the requirements 
 of the statute. 
 
 " But when a contract for the sale of personal property, 
 valid at common law, is made, and the buyer afterwards 
 pays expressly to hind the contract, or when payment is made, 
 and the parties then reaffirm or restate the terms of the con- 
 tract, and their minds then meet so as to make a contract, the 
 statute is undoubtedly satisfied. Such a payment is made 
 at the time of the contract and not afterwards." 
 
 A new contract is then made as of the time of payment. 1 
 
 § 371. On the second appeal in Hunter v. Wetsell. 2 the 
 court referred to the previous appeal where it was declared 
 that the payments were insufficient to validate the contract, 
 because when made there was no restatement or recognition 
 of the essential terms of the contract. 
 
 In the case as presented on this appeal, the difficulty, 
 fatal before, was obviated. The proof presented here 
 showed that a restatement of the essential terms of the con- 
 
 1 Jackson v. Tupper, 101 N. Y., art, 60 N. Y., 413, reversing 1 
 515, Andrews, J.; Organ v. Stew- Hun, 411. 
 
 2 84N. Y, 549. 
 
304 SALES. [chap. XIX. 
 
 tract was made at the time of the delivery of the first check 
 for $200. There was some contradictory proof. The ques- 
 tion was left to the jury, and they, in rendering a verdict 
 for the plaintiffs, found the fact of such restatement. 
 
 " That finding," says the court, Finch, J., " is conclusive 
 upon us." 
 
 It was claimed that the check given, in and of itself, was 
 not a payment at the time, and so there was no payment. 
 But the court said : It is quite true that a check, in and of 
 itself, is not payment, but it may become so when accepted 
 as such and in due course actually paid. A check is not 
 money, but it is a thing of value and is money's worth 
 when drawn against an existing deposit which remains un- 
 til the check is presented. 
 
 The aim of the statute of frauds " is to substitute some 
 act for mere words, to compel the verbal contract to be ac- 
 companied by some fact not likely to be mistaken, and so 
 avoid the dangers of treacherous memorjr or downright 
 perjury. The delivery of the check was such an act. In- 
 deed, it would be an entirely reasonable and just construc- 
 tion to say that the delivery of the check and its present- 
 ment and payment constituted one continuous transaction, 
 and should be taken as such without reference to the ordi- 
 nary delay attendant upon turning the check into money. 
 The statute does not mean rigorously, eo instanti. It does 
 contemplate that the contract and the payment shall be at 
 the same time, in the sense that they constitute parts of one 
 and the same continuous transaction." 
 
 The court held that there was a payment at the time 
 within the meaning of the statute, and that the contract of 
 sale was valid. 
 
 It will be observed that the case, on this appeal, turned 
 upon the fact, which did not appear on the former appeal, 
 that a restatement of the terms of the contract was made at 
 the time of the payment of the check. 
 
 § 372. "While it is well settled that a subsequent delivery 
 and acceptance of goods, sold under a contract void by 
 
OHAP. XIX.] EARNEST AND PABT PAYMENT. 305 
 
 the statute of frauds, renders the contract valid (for the 
 statute does not require that the part acceptance should be 
 at the time of the making of the oral contract), it is other- 
 wise as to earnest or part payment. 
 
 In Allis v. Bead 1 this subject was directly passed upon by 
 the court of appeals. 
 
 Church, C. J., delivering the opinion of the court, said: 
 " I do not hesitate to say that after a contract has been 
 made, the parties may make a valid contract by adopting 
 the terms of the void contract, provided it appears that 
 such terms are understood and assented to and a payment 
 is made and received upon the contract. It is a valid con- 
 tract from that time, and the statute is fully satisfied, as 
 if the contract had been made valid originally by a pay- 
 ment at the time." 
 
 The language employed by the legislature is too clear 
 and unambiguous to admit of doubt, that the part payment 
 must be made when the contract is consummated. 
 
 § 373. The first case of importance in this country where 
 the clause of the statute of frauds relating to part payment 
 received attention was Thompson v. Alger. 2 It grew out 
 of an oral contract for the purchase and sale of certain stock 
 in the Hudson & Berkshire Railroad Company. 
 
 The statute of frauds of Massachusetts does not in terms 
 require that earnest or part payment shall be made at the 
 time of the contract. 
 
 But Dewey, J., decided that a payment made subse- 
 quently to the time of the making of the contract, with the 
 concurrence of both of the contracting parties, will answer 
 the requirements of the statute, and the contract will be- 
 come valid from the time of such payment, if when the 
 payment is made the minds of the parties meet, and an 
 agreement is then consummated. 
 
 By the decisions in New York and some other states it is 
 
 145 N. Y., 142. See, also, Wal- 1 Pickering, 480. See, also, Saun- 
 
 rath v. Ingles, 64 Barb., 265. derson v. Jackson, 2 Bos. & Pul., 
 
 212 Met., 435; Damon v. Osborn, 238. 
 20 
 
306 SALES. [OHAP. XIX. 
 
 held in such cases that it is -not the former contract or bar- 
 gain that is really consummated, but the new contract. 
 
 § 374. So, also, in Whitwell v. Wyer, 1 the court .held that, 
 before payment of a part of the purchase money, neither 
 party would be bound by the terms of the oral contract. 
 
 Sewell, C. J., said : " The bill of parcels and the payment 
 on July 1st have so direct a reference to the bargain of 
 June 22d as to take the case out of the statute, as far as to 
 establish a contract which may be enforced, notwithstand- 
 ing the provisions of the statute of frauds, and the bargain 
 proved may be considered as then made. The vendee would 
 be under no obligation to make a payment, and the vendor 
 under no obligation to receive one." But, says the court, 
 " when actually made and accepted with the full concurrence 
 of loth parties, then the contract tahes effect; then a part 
 payment of the purchase money has been made, and then 
 the parties have made a valid contract." 
 
 If the contract is not in law deemed to be made until the 
 part payment of the purchase money, says Paige, J., in 
 McKnight v. Dunlop, 2 referring to the case of Thompson v. 
 Alger, 3 and the previous invalid oral agreement is merely 
 referred to to ascertain the terms of the subsequent valid 
 contract, the decision in Massachusetts may be regarded as' 
 sound. 
 
 § 375. As to what may be regarded and agreed upon as 
 equivalent to money as payment in the sale of goods was 
 touched upon in Flanders v. Maynard. 4 The case grew out 
 of a sale of a lot of cotton. Bleckley, J., substantially held 
 that, whatever the parties, in closing the contract and mak- 
 ing settlement, shall finally treat as equivalent or represent- 
 ative of cash, will serve, pro hac vice, in lieu of money, if 
 they really intend to conclude the sale presently and pass 
 title at once. This is good law. 
 
 ill Mass., 6. a 12 Met., 435. 
 
 2 5 N. Y. , 537 ; Campbell v. Camp- * 58 Ga. , 56. 
 bell, 3 Stock. (N. J.), 368; Green v. 
 Richards, 8 C. E. Green, 32. 
 
CHAP. XIX.] EARNEST AND PART PAYMENT. 307 
 
 And it may be observed that the money, or thing of value 
 representing money's worth, must be paid or passed over 
 when the bargain is concluded ; not eo instanti, but so that 
 they constitute one continuous transaction. 
 
 § 376. In Bates v. Chesebro ] it was decided that to make 
 valid a parol agreement for the sale of goods (exceeding in 
 amount the price mentioned in the statute), where there is 
 no delivery of any part, the buyer must at the time the con- 
 tract is entered into pay some portion of the purchase 
 money. 
 
 " This is the plain, explicit language of the statute," said 
 Cole, J., " and it is the duty of the courts to give effect to 
 it as enacted, rather than attempt to evade or nullify its 
 provisions by some nice and refined construction." Hence 
 if a valid contract is made at all, it is made at the time the 
 money is paid and received. Not before. And it is nec- 
 essary, where part payment is made subsequent to the con- 
 tract itself, that the terms of the previous void contract be 
 restated. It is essential that the minds of the parties should 
 then meet as to the terms and conditions of a contract, so 
 as to form and make a new one. 
 
 " If the minds of the parties met and assented to the 
 terms and conditions of the prior agreement, then the stat- 
 ute would be satisfied, because a complete contract would oe 
 entered into at the time part of the purchase price was paid." 
 
 The court, however, in this case, granted a new trial, 
 on the ground, that the trial judge did not clearly state 
 the distinction, which under the circumstances it was im- 
 portant should be stated, between the payment and ac- 
 ceptance of the $47 on account of the prior oral agreement 
 and a payment and acceptance on a contract which was 
 made at the time of such payment. 
 
 § 377. The decision of the court of appeals in Bissell v. 
 Balcom 2 is another good illustration of the rule governing 
 
 136 Wis., 640; 32 id., 594. 2 39 N. Y., 275, reversing S. C, 
 
 40 Barb., 98. 
 
308 SALES. [chap. XIX. 
 
 part payment at the time of the contract, and what effect 
 on the original contract a subsequent payment has. 
 
 This was an action to recover the price of certain cattle 
 alleged to have been sold by the plaintiff to the defendant 
 in August, 1861. The cattle were to be kept by the plaint- 
 iff on his farm until December following. The defendant 
 was privileged to take any of them away before that time, 
 but was not to pay the plaintiff for keeping them. 
 
 At the time of the bargain the defendant asked the plaint- 
 iff if he wanted some money to bind the bargain, and 
 plaintiff said he did not care about it then, as his word was 
 good for the bargain. No writing was made, no money 
 paid, and no delivery of any of the cattle. Next day the 
 plaintiff asked the defendant for some money on the trans- 
 action. The defendant then paid him $3, and directed the 
 plaintiff to put the cattle on the flats, thus changing them 
 from one pasture to another; and afterwards requested the 
 plaintiff to divide the cattle, and put one part of them on 
 fne plains, and the other part on the flats of his farm, 
 which was done. 
 
 During the following month a heavy flood came, and 
 seven of the fifteen cattle were swept down the river and 
 drowned. 
 
 After the plaintiff had given his evidence, the defendant 
 moved for a nonsuit on the grounds that the contract was 
 void by the statute of frauds, as there was no memorandum 
 in writing; no delivery of any part of the property; and 
 no part of the purchase money paid at the time of the con- 
 tract, and that it was an executory contract for a future 
 delivery, and neither performance nor a tender of perform- 
 ance had been shown. The motion for a - nonsuit was de- 
 nied. A verdict was given for the plaintiff. 
 
 § 378. At general term a new trial was granted. The 
 court, "Welles, J., rested his decision principally upon the 
 points: First, that the evidence did not show a delivery or 
 acceptance of the cattle, nor anything done towards a deliv- 
 ery. The case, he thought, could not be distinguished in 
 
CHAP. XIX.] EARNEST AND PART PAYMENT. 309 
 
 principle from Shindler v. Houston ; * and secondly, that no 
 part of the purchase money was paid at the time of the al- 
 leged sale. 2 
 
 The court of appeals, "Woodruff, J., delivering the opinion 
 of the court, after stating the facts in the case, substantially 
 decided, aside from the question of delivery, that the sale 
 was a present sale, valid at common law ; that the effect of 
 the transactions the day following the first oral treaty for 
 the sale, when the parties made distinct and intelligent 
 reference to the negotiations of the day previous, both rec- 
 ognizing its want of validity, because no part of the price 
 was paid; a declared intent to make the bargain binding; 
 assented to ; a request for the payment of the money for 
 that purpose, and a payment in compliance with that re- 
 quest, was controlling. At that time there was an affirm- 
 ance of the agreement and its conditions, and an acceptance 
 of its performance. 
 
 " At that very time the minds of the parties do actually 
 meet in the fact of sale, and then there is a bargain made 
 or adopted, and, at that time, part of the purchase price is 
 paid." The words and treaty before that time had no legal 
 force. 
 
 The money paid in this case on the occasion last referred 
 to was a payment of part of the price at the time of the 
 agreement, within the only reasonable meaning and intent 
 of the statute. 
 
 The order granting a new trial was reversed. 
 
 § 379. In Paine v. Fulton 3 the plaintiff had judgment 
 and the defendant appealed and prevailed. In this case 
 damages were claimed for the breach of an alleged execu- 
 tory contract for the sale of a lot of logs. None of the re- 
 quirements of the statute of frauds were, at the time of the 
 
 1 1 N. Y., 261. ply obiter of the judge in that case, 
 
 2 The plaintiffs' counsel referred as it was not necessary to the decis- 
 
 to Thompsons. Alger, 12 Met., 428, ion in the case. 
 
 as holding that part payment may 3 34 Wis., 85; Pike v. Vaughn, 
 
 be made after the time of the con- 39 id., 506. 
 
 tract. It seems to have been aim- 
 
310 sales. L CHAP - XIX - 
 
 contract, complied with. On the night of the day on which 
 the agreement was made, however, the defendant stopped 
 with one Smith, a boarding-house keeper in Oshkosh, over 
 night, but did not pay him. Some time afterwards the 
 plaintiffs paid Smith " nine shillings " for entertaining the 
 defendant that night. The testimony tended to show that 
 it was part of the agreement that the plaintiffs should pay 
 this bill, and that it was paid in pursuance of such agree- 
 ment. The defendant did not deliver the logs to the plaint- 
 iffs but sold them to another party. 
 
 Conceding that the plaintiffs paid the money to Smith, 
 in pursuance of the contract, observes the court, Lyon, J., 
 and in part execution thereof, it is indisputable that such 
 payment was not made at the time the contract was entered 
 into, but afterwards. The contract, unless such payment 
 saved it, was void. 
 
 As there could be no pretense that the money mentioned 
 as having been paid by the plaintiff to Smith was paid at 
 the time the alleged contract was made, the judgment in 
 favor of the plaintiff was set aside and a new trial granted, 
 
 § 380. In Hanson v. Eoter x it appeared that the plaint- 
 iff, about Christmas, 1882, talked with the defendant about 
 selling him a quantity of logs. Sometime after that he was 
 in the defendant's store, and got a pair of boots on the 
 strength of hauling the logs in question. At the same time 
 he got some feed, also presumed to have been upon the 
 same understanding. 
 
 The court, Cole, C. J., in effect said that if these articles 
 were intended to apply on the contract, they would not 
 have the effect to make the agreement valid, for the reason 
 that it was not at the time of the contract. 
 
 § 381. In Howe v. Hay ward 2 certain moneys were de- 
 posited with a third person " as a forfeiture, to be paid over 
 to the party who was ready to perform the contract, if the 
 other party neglected to do so." 
 
 • 64 Wis., 622. 2 108 Mass. , 55. 
 
CHAP. XIX. J EARNEST AND PAET PAYMENT. 311 
 
 Chapman, C. J., held that such deposit was not equiva- 
 lent to an earnest to bind the bargain, or part payment, and 
 the sale was not valid under the statute of frauds. 
 
 § 382. In Baker v. Farmbrough, 1 where an action was 
 brought to recover damages for the breach of a contract 
 for the sale of hogs, the memorandum which was signed 
 was defective in omitting the name of the defendant; and 
 it was clearly proved on the trial that at the time of the 
 making of the contract $100 was paid as earnest to bind 
 the bargain or as part payment, it was decided that the 
 payment took the sale out of the operation of the statute 
 of frauds (the seventh section), and rendered a reformation 
 of the contract unnecessary. 
 
 § 383. In Dow v. Worthen 3 it was held that part pay- 
 ment required by the statute of frauds does not mean the 
 actual passing of money from the vendee to the vendor. 
 But it must be something of value. It must be agreed by 
 both parties at the time that the value is then actually 
 passed, — that it is a then present payment. 
 
 It must not rest in agreement — it must be pay down. 
 Both parties must so understand it. 
 
 All that is required is actual part payment. Parties may 
 prove it as they may. 
 
 This was an action in assumpsit for not receiving a lot of 
 poultry which the plaintiff purchased for the defendant as 
 his agent. The plaintiff was employed by the defendant 
 to purchase certain poultry of one Hatch. He did so. The 
 bargain was made on Saturday, The poultry was to be 
 moved on the following Tuesday or "Wednesday. There 
 was no writing, no part of the poultry delivered, and noth- 
 ing given as earnest ; except that, as the evidence showed, 
 previous to this bargain, Hatch agreed to take ten or 
 twelve barrels of apples of the plaintiff. The plaintiff sent 
 Mm twenty barrels, with word that he would take back 
 
 i43lnd., 240. 2 37 Vt., 108; Eichardson v. 
 
 Squires, 37 id., 640. 
 
312 SALES. [CHAP. XIX. 
 
 what he could not sell. On the Saturday it was agreed 
 between Hatch and the plaintiff that the account of the 
 plaintiff against Hatch for the apples should apply towards 
 the poultry, and that account was §75, and that this was 
 then agreed on as a part payment of the poultry. 
 
 " This was something more than a mere agreement as to 
 an antecedent debt," says the court; "it was a settlement 
 and actual transfer of the title of property already deliv- 
 ered." This is the important element in the case. The 
 court below charged the jury that if they found the facts in 
 relation to the apples, and the agreement applying the $75 
 in part payment for the poultry, it was such a part payment 
 as constituted a sufficient compliance with the statute of 
 frauds, — if they found it was understood by the parties, at 
 the time of the trade, as a then present payment. They 
 found for the plaintiff. 
 
 § 384. In Matthiessen & Weichers Eeflector Company 
 v. McMahon, 1 the principal question involved was, as to the 
 validity of a parol contract, where goods were sold in pay- 
 ment of an existing debt due from the seller to the buyer. 
 
 The same question was passed upon in Walker v. Eussey, 2 
 the doctrine of which case has been generally adopted in 
 the text-books. 3 Substantially the same doctrine was enun- 
 ciated in Artcher v. Zeh, 4 earlier in point of time, and has 
 been reaffirmed in other cases. 
 
 The principle decided in these cases is, that an agreement 
 to purchase, where it is part of the contract of sale that a 
 debt due from the seller is to be part payment of the. price, 
 is not a compliance with the statute where no receipt is 
 
 1 38 N. J. (9 Vroom), 536. It was held in an early case that 
 
 2 16 Mees. & "Wels., 302. if A. agrees to purchase a gun of 
 
 s Benjamin on Sales, 139; Story B. for a stated sum and B. is to take 
 
 on Sales, 273a; 1 Chitty on Cont., another gun of A. in part payment 
 
 564; 3 Parsons on Cont., 52. at a less price, A. having refused 
 
 *5 Hill, 200, S. C. See, also, Ely to deliver his gun and complete his 
 
 v. Ormsby, 12 Barb., 570; Teed v. contract, B. may recover of A. the 
 
 Teed, 44 Barb., 96; Walrath v. purchase price of the gun. Forsyth 
 
 Eitchie, 5 Lansing, 362. v. Jervis, 1 Stark., 437. 
 
CHAP. XIX.J EARNEST AND PABT PAYMENT. 313 
 
 given, nor any actual credit made in discharge of the 
 debt. 
 
 Depue, J., in the case under review, said that " where no 
 written evidence of the contract is made, and payment is 
 relied on as the compliance of the statute, mere words are 
 not sufficient; some act in part performance or part execu- 
 tion of the contract, such as the surrender or cumulation of 
 the evidence of the debt, or a receipt or discharge of the in- 
 debtedness, is necessary to make the contract valid. This, 
 in my judgment, is the correct exposition of the statute, 
 and is in unison with the spirit and reason of the enact- 
 ment." 
 
 Hence, it follows that, until an actual application of the 
 payment is made by receipt, indorsement or otherwise, it is 
 nothing more than a simple agreement to pay in that mode; 
 and, so far as the statute is concerned, it no more aids to 
 prove the contract valid than does the agreement to pay 
 the price in an ordinary sale where actual payment is ex- 
 pected. 1 
 
 § 385. As already shown, mere words will not satisfy 
 the statute of frauds. 
 
 So it is well established that a verbal contract to pur- 
 chase an article and apply a debt due from the seller to the 
 buyer to the purchase money in payment is invalid, unless 
 some memorandum or receipt evidences the fact. 
 
 Thus, in Brabin v. Hyde, 2 the purchaser had a debt of 
 about $200 against the seller, and made a verbal contract 
 to purchase from him a mare and colt for $175, and apply 
 the purchase money in payment of the debt. The court of 
 appeals held that it was not a payment at the time of mak- 
 ing the contract within the statute. 
 
 § 386. So in Mattice v. Allen, 3 where the defendant's 
 agent, who made the agreement to purchase of the plaint- 
 
 iGilman v. Hill, 36 N. H., 317. v. Fulton, 34 Wis., 83; Brady v. 
 
 Payment to a third party, in dis- Harrahy, 21 U. C. Q. B., 340. 
 
 charge of a debt, is sufficient to 2 32 N. Y., 519. 
 
 satisfy the statute of frauds. Paine 3 3 Abbott's Ct. of App. Dec, 350. 
 
314 sales. [chap, xrx; 
 
 iff his barley, had a debt against him of $40 and agreed at 
 the time that this debt should apply as payment upon the 
 barley, Grover, J., held the agreement to be void under 
 the statute, as it rested entirely in words. 
 
 But it is held that where mutual debts exist, an agree- 
 ment by the parties to apply the same in satisfaction of 
 each other will operate as satisfaction of both. 1 Especially 
 so where it is shown that it has been actually applied by 
 receipts, or otherwise, to bring it within the exception of 
 the statute. 2 
 
 § 387. In "Walrath v. Ingles 3 an agreement was made 
 whereby a quantity of clover seed was to be delivered, at a 
 specified price per bushel, amounting in the aggregate to 
 more than $50, the defendant agreeing to take a barrel of 
 sugar as part payment. This was decided not to be such a 
 part payment as would take the case out of the statute of 
 frauds. In one case, such an agreement was declared to be 
 in fulfillment of the statute, on the ground that it was, in 
 fact, payment and extinguishment of the debt. But that 
 case was afterwards reversed on the ground that mere 
 words will not satisfy the requirements of the statute ; that 
 some act of the parties is required, showing by such act 
 their assent to the contract. 
 
 § 388. As a principle deducible from the decisions, it is 
 clear that the act of part performance may originate with 
 the vendor or vendee; with the vendor, if a delivery of 
 part of the goods, and their acceptance by the vendee ; with 
 the vendee, if part payment is relied upon. Mutual assent 
 of the contracting parties in either case is necessary. Part 
 payment implies a receipt and acceptance of the consider- 
 ation on account of the subject of the sale by the party to 
 whom it is made. 
 
 § 389. It is well settled that payment can be made to the 
 vendor, or to his agent authorized to receive it ; and when 
 made to such an agent, it is equivalent to a payment to the 
 
 i Davis v. Spencer, 24 N. Y., 386. 3 64 Barb., 268. 
 2 Wylie v. Kelly, 41 Barb., 598. 
 
chap: xix.J earnest and paet payment. 315 
 
 principal. This rule applies as well to contracts without the 
 statute of frauds as to contracts within it. Thus, in Hawley 
 v. Keeler, 1 Andrews, J., held that the part performance 
 contemplated by the statute of frauds must be with the 
 assent of both parties ; that a part payment to the agent of 
 the vendor is as effectual as if paid to the principal himself, 
 but that the agent's authority to receive payment must be 
 shown by acts of the vendor recognizing such agency. So, 
 also, a subsequent ratification of the act of an assumed 
 agent, in receiving the payment, is equivalent to an original 
 authority to receive it. 
 
 § 390. In Krohn v. Bantz 2 the respondent Bantz, in er- 
 ror, claimed to have bought a certain number of hogs of 
 Krohn, at a given price. Krohn refused to deliver the hogs 
 and this action was for damages by reason of such refusal. 
 None of the requirements of the statute were fulfilled. 
 But at the time of the bargain a note for $100 was given by 
 Bantz to Krohn, as an earnest to bind the contract, as al- 
 leged, and the question arose whether this was equivalent 
 to earnest or part payment under the statute of frauds. 
 The court, "Worden, J., held that a note cannot be construed 
 as a sufficient note or memorandum in writing of the bar- 
 gain. It was not even signed by the party sought to be 
 charged in the action. 
 
 " The note, we think, cannot be regarded as part pay- 
 ment within the meaning of the statute. It was but the 
 plaintiff's agreement to pay, in the future, a part of the pur- 
 chase money for the hogs, before the arrival of the time for 
 their delivery. 
 
 " It was no more effective for the purpose of taking the 
 contract out of the statute, as part payment, than would 
 have been the plaintiff's parol promise to do the same 
 thing." He further proceeds to say that if the note had 
 been of such a character as to be governed by the law 
 merchant, and therefore to legally operate, prima facie, 
 as payment, the question presented might have been differ- 
 
 153N. Y., 119. 2 68Ind.,278. 
 
316 SALES. [chap. XIX. 
 
 ent. A note such as was given here does not legally oper- 
 ate as payment of the debt, without an express agreement 
 between the parties. 1 
 
 This decision is sound and is good law. Earnest must be 
 something of a money value. The note here given had no 
 consideration to support it; its payment could not have 
 been enforced. 2 It was a valueless thing, and could not in 
 any respect satisfy the statute of frauds. 
 
 § 391. So, also, in Ireland v. Johnson, 3 it was directly 
 held that the giving of a promissory note of the purchaser 
 of goods for over $50, to the seller, for the purchase price 
 thereof, is not a payment within the statute of frauds, so as 
 to pass the title to the property to the purchaser. 
 
 The distinction is drawn between the giving of one's own 
 note and the note of a third person. In the one case it is 
 the mere promise of the purchaser to pay; while in the 
 other it is the actual transfer of a debt or claim against 
 another person, which, if agreed to be taken as payment, 
 actually extinguishes the debt and discharges the liability 
 of the purchaser. 
 
 No new liability is created by the giving of one's own 
 note, and no liability is extinguished or in the least changed, 
 the debt remaining unpaid, and the creditor simply has the 
 promise of the debtor in writing to pay the amount agreed 
 upon at the time fixed. 
 
 The county judge in that case declared that he was un- 
 able to see how, in connection with the statute of frauds, 
 it can have the effect of an actual .payment, when it is not 
 regarded as payment of the purchase money in any other 
 case. 
 
 But it seems to be sufficient to satisfy the statute, if a 
 price is applied upon a precedent debt by a receipt being 
 
 i Maxwell v. Day, 45 Ind., 509; 8 28 How. Pr. R., 463; 18 Abb. 
 
 Alford v. Baker, 53 id., 279. Pr. R., 392; Vaustenberg v. Hoff- 
 
 2 Combs v. Bateman, 10 Barb., man, 15 Barb., 28; Waydell v. 
 
 573; Hooker v. Knab, 26 Wis., Luer, 3 Denio, 416. 
 511; Scott v. Bush, 26 Mich., 418. 
 
CHAP. XIX.] EARNEST AND PART PAYMENT. 317 
 
 given at the time. Under an agreement to have a deht 
 due to the agent of the buyer, from the seller, applied on 
 account, it is held not a payment at the time of making the 
 contract, within the statute of frauds. 
 
 § 392. The recent "Wisconsin case of Sharp v. Carroll 1 is 
 interesting. The action was brought to recover the value of 
 four hundred bushels of wheat, alleged to have been wrong- 
 fully taken from the plaintiff by the defendant. The de- 
 fendant was the sheriff of St. Croix county. He answered 
 that the wheat sued for belonged to "W". C. Sharp, who was 
 a brother of the plaintiff, and that he seized the wheat un- 
 der a writ of attachment to satisfy the claim of F. & J., 
 attaching creditors. 
 
 On the morning of the day the attachment was levied, 
 before the seizure, the plaintiff and W. C. Sharp met in 
 Baldwin, and there a negotiation was entered into by which 
 all the wheat in a certain granary was sold by W. C. Sharp 
 to the plaintiff; that the wheat was in bulk, and it was 
 agreed that there were seven hundred bushels, which was 
 to be at eighty-five cents per bushel ; that in payment the 
 plaintiff surrendered to W. C. Sharp a note of $500, which 
 he held against him, and agreed to pay the balance in cash ; 
 saying in the presence of a witness, " I give you possession 
 of the wheat now." After this transaction, during the 
 same forenoon, the sheriff- attached the wheat. He levied 
 on the wheat, but did no other act affecting the property. 
 While the sheriff was out seeking for teams and sacks to 
 enable him to remove the wheat, the plaintiff and "W". C. 
 Sharp came to the house where the wheat was, and by 
 direction of the plaintiff the door of the house was locked. 
 Later in the day the sheriff came and removed the wheat 
 in controversy. 
 
 On the trial the plaintiff had a verdict. The defendant 
 appealed. Lyon, J., said: "If the transactions at Baldwin 
 occurred as testified to by all who were then present, there 
 can be no reasonable doubt that the plaintiff then purchased 
 
 1 27 Northwestern Rep., 832. 
 
318 SALES. [chap. XIX. 
 
 the wheat in bulk of Wesley, and delivered to him the $500 
 note in part payment therefor, and that the title to the 
 wheat (as between them) passed then and there to the 
 plaintiff." 
 
 " The symbolical delivery to the plaintiff of the key to 
 the granary was the only delivery of the wheat practicable 
 at the time, in view of the bulk and nature of the property. 
 Such delivery is effectual in such cases." 
 
 On the question of the note surrendered being part pay- 
 ment the court said : " The surrender must actually be made 
 or the credit given. The purchaser must, at the time of 
 the purchase, part with something of value. In this case 
 the plaintiff did part with something of value in part pay- 
 ment for the wheat, to wit, the note he held against Wes- 
 ley. Such note was effectually canceled by the delivery 
 thereof to the maker pursuant to the parol contract." 
 
 The judgment was affirmed. 
 
 § 393. In Parker v. Steward 1 the plaintiff made a con- 
 tract with the defendant for the purchase of a lot of wool. 
 At the time, he paid the defendant $50 as earnest money, 
 or part payment. The contract was made November 25, 
 1858; the wool was to be taken away December 15. 
 
 On December 11 it was agreed that the time for payment 
 of the balance of the purchase money and for the delivery 
 of the wool should be extended to February 1 following. 
 No writing of any kind passed between the parties. 
 
 On these facts the defendant claimed that this enlarge- 
 ment of time for the performance of the original contract 
 constituted a new contract, and that as it was not in writing, 
 and no additional earnest money paid, it was within the 
 statute of frauds and void. 
 
 But the court, Kellogg, J., held that " where a contract 
 for the sale of goods is taken out of the statute by the pay. 
 ment of earnest, and is not reduced to writing, it does not 
 contravene the spirit or policy of the statute of frauds to 
 allow its terms to be varied by parol any more than it 
 
 1 34 Vt., 127. 
 
CHAP. XXX.'] EARNEST AND PART PAYMENT. 319 
 
 would to allow the terms of the original contract to be thus 
 proved." 
 
 The decisions in such cases treat the original contract as 
 still remaining, and that no new consideration is requisite for 
 an alteration of its terms in respect to the time of its per- 
 formance. The consideration for the old agreement is im- 
 ported into the new agreement which is substituted for it. 1 
 § 394. One of the most novel, if not the earliest case, 
 which arose under the English statute of frauds, illustra- 
 ting the effect of a part payment at the time of making. the 
 contract, is Thornborow v. Whitacre. 2 
 It was tried in 1705. 
 
 There, as it appears by the record, Thornborow met 
 farmer Whitacre and said to him : " Let us strike a bargain : 
 If I pay you a £5 note down now, will you give me two rye 
 corns next Monday, four on Monday week, eight on Mon- 
 day fortnight, and so on, doubling it every Monday for a 
 year?" 
 
 Farmer Whitacre not stopping to estimate the result of 
 such a bargain, and thinking the money easily earned, with 
 avidity accepted the offer, and the bargain was made. 
 
 But when the too hasty Whitacre came to calculate how 
 much rye he should have to deliver, he found that it came 
 to more than was grown in a year in all England. 
 
 In default of the compliance with the contract, Thorn- 
 borow brought his action. 
 
 The court decided that although "the contract was a 
 foolish one it would hold in law." There was a considera- 
 tion paid down, and as for the other points urged by the 
 defendant, that it was " an impossible contract," the court 
 declared that " it was only impossible in respect of the de- 
 fendant's ability to perform it." 
 
 The contract was taken out of the operation of the stat- 
 ute by payment of part of the purchase money at the time 
 of the agreement. The plaintiff had judgment. 
 
 i Stead v. Dawber, 10 Ad. & E., 2 2 Lord Raymond's R., 1164. 
 57; 37 E. C. L., 40. 
 
320 BALES. [OHAP. 3X£. 
 
 § 395. From the several authorities cited and commented 
 upon in this chapter, the following legal conclusions may 
 be inferred: 
 
 First: That the part payment, within the meaning and 
 reasonable construction of the statute of frauds, must be 
 made at the time of the making of the contract. 
 
 Second: That if part pa3 T ment is not made at the time 
 of the making of the contract, and the parties subsequently 
 thereto meet and the agreement is then restated and reaf- 
 firmed, mutually between them, and the buyer then pays 
 something to the seller in part payment, the payment then 
 made is a payment made in validation of that agreement, 
 but does not revive or reanimate the former void contract. 
 
 Third: That part payment or earnest must be in money 
 or money's worth, that is, something of intrinsic value. 
 
 Fourth: That where the vendee gives his own note to 
 the seller, at the time of the contract, it is neither earnest 
 nor part payment, and does not take the contract out of 
 the statute of frauds. 
 
 Fifth: A note of a third party may be received as earn- 
 est or part payment. 
 
 Sixth: A surrender of a note held by the purchaser, to 
 the seller, if done at the time of the contract, will be a 
 payment under the statute of frauds. 
 
 As the cases, where these several questions have been 
 passed upon, vary as to the facts and the law as applied, 
 it has been thought of sufficient importance to give the de- 
 cisions of the courts more or less in extenso; and it is be- 
 lieved that all of the cases of any considerable importance 
 have been cited. 
 
GHAPTEE XX. 
 
 OF THE MEMORANDUM OR NOTE IN "WRITING. 
 
 ;} 396. What is a note or memorandum. 
 
 397. Statute of frauds of the several states as to memorandum. 
 
 398. Origin of the provision ; effect of it criticised. 
 
 399. The statute required a new rule of evidence ; the contract not 
 
 void. 
 
 400. Words " shall not be allowed to be good " construed by different 
 
 authorities. 
 
 401. Reference to the fourth and seventeenth sections of the English 
 
 statute of frauds. 
 
 402. Certain contracts not illegal, but only incapable of being en- 
 
 forced. 
 
 403. Requisites of the note or memorandum; Williams v. Robinson; 
 
 contracts not void. 
 
 404. When may the memorandum be made. 
 
 405. Essentials of a note or memorandum. 
 
 406. The memorandum must show who the contracting parties are. 
 
 407. Where place of delivery stipulated for must appear in memo- 
 
 randum. 
 
 408. Where contract stated in memorandum is not the contract 
 
 made. 
 
 409. Memorandum to be signed before action brought. 
 
 410. Memorandum must name or designate the parties. 
 
 411. Presumption as to contents of memorandum. 
 
 412. Parol evidence to connect writings. 
 
 413. Where no time is fixed for delivery, law will fix a reasonable 
 
 time ; Kriete v. Meyer. 
 
 414. Same subject ; Lash v. Parlin. 
 
 415. Parol evidence allowed to identify the subject-matter of the con- 
 
 tract. 
 
 416. Another example. 
 
 417. Incomplete contract ; where quantity or weight unascertained. 
 
 418. Another example ; Higgins v. Chessman. 
 
 419. The aim of the statute of frauds is to fix the line between nego- 
 
 tiation and contract. 
 
 420. Parol evidence admissible to show the situation of the par- 
 
 ties. 
 21 
 
322 SALES. [CHAP. XX. 
 
 § 421. Statute cannot be set up by the party who signed the memo- 
 randum contract. 
 
 422. The statute under certain circumstances declared "really a 
 
 statute of frauds." 
 
 423. Contract binding upon one who signs ; who may object to its 
 
 validity. 
 423a. The same subject continued. 
 
 424. Not essential that both parties to the contract have a memoran- 
 
 dum. 
 
 425. In different letters or documents comprising the memorandum 
 
 there must be no material variance. 
 
 426. Mutual relation of the writings must appear on their face ; Beck- 
 
 with v. Talbot. 
 
 427. Example of sufficient subscription to the memorandum ; Coon v. 
 
 Rigden. 
 
 428. Where the writings embody the terms, and which are adopted 
 
 by the defendant. 
 
 429. Case where letters made up the memorandum ; Doughty v. Man- 
 
 hattan Brass Company. 
 
 430. Where letters sufficiently refer to the memorandum ; an exam- 
 
 ple. 
 
 431. A memorandum in a few words. 
 
 432. Letters forming a memorandum. 
 
 433. Parol evidence not admissible to connect letters in order to sat- 
 
 isfy the statute. 
 
 434. An acceptance modifying the proposition of the other party is 
 
 not binding on either. 
 
 435. Parol evidence admissible to show that the contract was made 
 
 by an agent ; principal liable, when. 
 
 436. Agent liable without disclosing name of his principal; Fenly v, 
 
 Stewart. 
 
 437. Whether an order is a memorandum under the statute, or a 
 
 mere offer ; Wemple v. Knopf. 
 
 438. Example of a memorandum adjudged to be an order. 
 
 439. Where mutuality is lacking, simply an offer. 
 
 440. Memorandum, where delivered conditionally and not absolutely 
 
 as a valid contract ; the case of Justice v. Lang. 
 
 441. The same case continued ; the second appeal. 
 
 442. The same case ; the third appeal. 
 
 443. Example of defective memorandum ; May v. Ward. 
 
 444. A general order for goods is not necessarily such a contract, al- 
 
 though goods be sent under it, as to obligate the seller to fill 
 subsequent orders; Ashcroft v. Butterworth. 
 
 445. Rule of construction where the order is given to a manufact- 
 
 urer. 
 
CHAP. XX.] MEMORANDUM OK NOTE IN WHITING. 323 
 
 § 446. Distinction between a memorandum under the statute and a 
 written contract. 
 
 447. An early case on sufficiency of the memorandum. 
 
 448. Sufficiency of the memorandum. 
 
 449. Memorandum order containing the words " terms moderate," 
 
 held conformable to the statute, as the price could be readily 
 ascertained. 
 
 450. Courts of chancery hold memorandum sufficient when only one 
 
 party has signed it. 
 
 451. After a memorandum has been signed, can a new verbal con- 
 
 tract be substituted for the original one. 
 
 § 396. The meaning of the word memorandum, lexico- 
 graphically speaking, is a note to help the memory; a min- 
 ute or record of the existence of certain facts by which 
 something is definitively known. 
 
 As used in the statute of frauds, a " note or memorandum 
 in writing " is the evidence of what passed in the minds of 
 the contracting parties at the time the contract was made. 
 
 Before the enactment, of the statute of frauds, contracts 
 were commonly entered into without any writing. But as 
 this custom gave rise to many fraudulent practices, which 
 were endeavored to be upheld by false swearing and cor- 
 ruption of witnesses, the legislature deemed it expedient to 
 require certain legal evidences of the making of the con- 
 tract. In other words, that certain specified acts should be 
 shown to have been done by the party to be charged, — such 
 as the signing of some note or memorandum in writing of 
 the bargain. 
 
 § 397. The language of the statute of frauds, in regard 
 to the note or memorandum of the bargain, is somewhat 
 different in the several states. 
 
 The meaning, however, is to the same general purport : 
 
 (a) A note or memorandum of such contract must be 
 made in writing. 1 
 
 (b) Some note or memorandum in writing of the bar- 
 gain. 2 
 
 1 Arizona, California, Nevada, 2 Florida, Indiana, Massachusetts, 
 New Jersey, New York, Minnesota, Maryland, Michigan, Missouri, 
 Montana and Wyoming. South Carolina and Vermont. 
 
324 SALES. [chap. XX. 
 
 (c) Some memorandum in writing of such agreement. 1 
 
 (d) The promise must be in writing. 2 
 
 (e) Contract void unless it be in writing, 3 as to sales of 
 " personal property." 
 
 These differences of language in the several statutes have 
 occasioned some variation in the decisions. Not so much, 
 perhaps, from their diversity, as from the subjects of the 
 contract to which the memorandum is made to apply. 
 
 § 898. The provision of the statute of frauds, as to the 
 necessity of a note or memorandum in writing, had its 
 origin in the assumption that it would be a safeguard 
 against perjury and the subornation of perjury. 
 
 Although traditional and juridical history demonstrate 
 that written evidence is freer from the possibilities of ter- 
 giversation and fraud than parol testimony, the efficacy of 
 the provision to accomplish this result has sometimes been 
 doubted. 
 
 In fact a judge, distinguished alike for his long experi- 
 ence on the bench, and as a common-law lawyer, has said 
 that, as a general regulation, its effects in the courts is not 
 to augment or promote commercial morality, but that it is 
 invariably resorted to for the purpose of defeating an agree- 
 ment fairly entered into. 4 
 
 On the other hand, experienced jurists and text-writers 
 have been generous in their praise of the beneficent effects 
 
 i Connecticut and Oregon. tract owned by the vendor and 
 
 2 Georgia. ready for delivery, but labor, skill 
 
 3 Iowa and Nebraska. By the or money are necessarily to be ex- 
 statute of frauds of Iowa (Rev., pended in producing or procuring 
 § 4007) the evidence of a contract the same." 
 
 " in relation to the sale of personal The statute does not declare the 
 property when no part of the prop- contract to be void ; it relates only 
 erty is delivered and no part of the to the evidence by which the con- 
 price is paid," must, as a rule, be tract may be proved. See Brown 
 in writing to be competent ; but the v. Allen, 35 Iowa, 309 ; Partridge 
 next section (4008) declares that this v. Wilsey, 8 id., 459. 
 provision "does not apply when 4 Daly, C. J., in Passaic Manu- 
 the article of personal property facturing Company v. Hoffman, 3 
 sold is not at the time of the con- Daly, C. C. P. R., 520. 
 
CHAP. XX.] MEMORANDUM OR NOTE IN WRITING. 325 
 
 of this provision, as well as of the wisdom which inspired 
 the general policy of the statute of frauds. 
 
 § 399. In Bailey v. Sweeting 1 Mr. Justice "Williams 
 observes that the effect of the statute of frauds is that, " al- 
 though there is a contract which is a good and valid con- 
 tract, no action can be maintained upon it if made by word 
 of mouth only, unless something else has happened ; e. g., 
 unless there be a note or memorandum in writing of the 
 bargain, signed by the party to be charged. As soon as 
 such a memorandum comes into existence the contract be- 
 comes an actionable contract." 
 
 The statute simply introduced a new rule of evidence; 
 and an agreement legal and actionable before its passage 
 is legal and actionable afterward. 2 
 
 In the recent case of Maddison v. Alderson 3 Lord Black- 
 burn says: " I think it now finally settled that the true con- 
 struction of the statute of frauds, both the fourth and the 
 seventeenth sections, is not to render the contracts within 
 them void, still less illegal, but it is to render the kind of evi- 
 dence required indispensable when it is sought to enforce 
 the contract." 
 
 Therefore, on general principles, if the statute of frauds is 
 not pleaded in oar of the action the contract may he sustained. 
 
 The statute only affects the mode of proof as to all con- 
 tracts falling within it. 
 
 § 400. But, in his excellent* work on Contracts, Mr. Pol- 
 lock also, arguing from an English standpoint, says: .'"The 
 effect of the seventeenth section is generally understood to 
 be different [i. e., from the fourth section]. It does not 
 only prevent contracts for the sale of goods of the value 
 of £10 or upwards from being sued upon under the condi- 
 tions specified, but enacts that they shall not ' be allowed to 
 he good; ' and although it has never been actually so decided, 
 
 1 9 C. B. N. S., § 843; Bill v. Ba- 2 Rogers v. Stevenson, 16 Minn., 
 
 rnent, 9 M. & W., 36; Tisdale v. 68. 
 
 Harris, 20 Pick., 9; but see Gibson 3 8 App. Cas., 467, 488; 52 L. J. 
 
 v. Holland, L. R., 1 C. P., 1. (Q. B.), 737, 749. 
 
326 SALES. [chap. XX. 
 
 it is the accepted opinion in this country, that where the 
 conditions (of that section) are not satisfied, the agreement 
 is absolutely void." 1 
 
 Professor Holland, of Oxford University, in his compre- 
 hensive work on " Jurisprudence," takes the same view; - as 
 does also Professor Parsons, in his work on " Contracts." 3 
 And Professor D wight, in Marie v. Garrison, 4 says the 
 words " shall not be allowed to be good " mean that an 
 unwritten contract within the statute is absolutely void. On 
 this point, also see the opinion in Greene v. Lewis. 5 
 
 But the reasoning of Lord Blackburn (see § 399) would 
 seem to be more in accordance with the policy of the law. 
 
 § 401. In Wald's Pollock on Contracts, 6 this fact is re- 
 ferred to, that Mr. Benjamin 7 exhibits the curious differ- 
 ence in the judicial interpretation of the "agreement" of 
 which a memorandum or note is required by section 4, and 
 the " bargain " of which a note or memorandum is required 
 by section 17. The " agreement " of section 4 includes the 
 consideration of the contract, so that a writing which 
 omits to mention the consideration does not satisfy the 
 words of that section; but the "bargain" of section 17 
 does not. 
 
 § 402. It has been held by well considered cases that 
 contracts within the statute of frauds are not illegal if not 
 in writing, but are only incapable of being enforced against 
 the defendant without writing; an immunity which the de- 
 fendant may waive. Hence, in an action where parol evi- 
 dence of such a contract was given by the plaintiff without 
 objection by the defendant at the time it was offered, and 
 not until the testimony was closed and the argument to the 
 jury had commenced, it was held that the defendant had 
 waived his right to object to the testimony. 8 Thus, also, it 
 
 1 Page 574, 2d Eng. ed. 6 p age 161. 
 
 2 Page 207. ' Page 193, 4th Am. ed. by Ben- 
 
 3 Vol. Ill, 5th ed., pp. 56, 57. nett, pp. 235, 242. 
 
 *13 Abbott's N. C, 254. » Montgomery v. Edwards, 46 
 
 5 26 Upper Canada, Q. B., 618. Vt., 151. 
 
CHAP. XX.] MEMORANDUM OK NOTE IN WRITING. 327 
 
 has been held that it does not follow, because a sale is void 
 under the statute of frauds, that the purchaser can derive 
 no title under it. It is only void at the option of the parties 
 concerned. If they elect to treat it as valid, it may become 
 effectual for all purposes. 1 
 
 The first statute of frauds of New York, like the English 
 statute, contained the words "allowed to be good, except," 
 etc., which were constrded to mean, for the purpose of a 
 recovery under it, at the time it is set up and sought to be 
 enforced. In many of the states the statute of frauds 
 reads, " shall be void, unless," etc., a note or memorandum 
 in writing be signed or subscribed by the party to be 
 charged. 2 Yoid things are declared to be no things. The 
 statute of some states use the words " Eb contract," etc., 
 " shall be valid," etc. 
 
 § 403. In the recent case of Williams v. Robinson, 3 the 
 
 following memorandum in writing was introduced in evi- 
 
 cLciicg " 
 
 " Augusta, June 8, 1880. 
 
 "I hereby agree to furnish M. F. "Williams, of New 
 
 Haven (postoffice address West Haven), eight hundred to 
 
 one thousand tons of ice, delivered on board vessels at 
 
 Augusta, Maine, properly packed for a voyage to New 
 
 Haven, for the sum of $2 per ton. 
 
 " Bond Brook Ice Company, 
 
 " I. E. Robinson, Augusta, Maine." 
 
 The court below instructed the jury, substantially, that a 
 memorandum, to be sufficient and valid within the meaning 
 of the statute of frauds, should contain all of the essential 
 elements and terms of the contract entered into by the par- 
 ties ; that parol evidence may be received to show that there 
 
 1 Russell v. Myers, 32 Mich., 522: zona, Minnesota, Montana, New 
 Putney v. Day, 6 N. H., 430; Jersey, New York, Nevada, Ore- 
 Ormsby v. Lewis, 46 Ind., 488; 29 gon, Wisconsin and Wyoming con- 
 Alb. Law Jour., 258; Browne on tain those words. 
 
 Stat, of Fr., 489. 3 73 Me., 186. 
 
 2 The statute of frauds of Ari- 
 
328 SALES. [chap. XX. 
 
 was some other element in the contract, some other propo- 
 sition or condition insisted upon by the parties, by the one 
 side or the other, as essential, which was not incorporated 
 in the memorandum ; and that in such a case the memo- 
 randum would not be valid and sufficient within the statute, 
 and the party could not be charged thereby. 
 
 On the appeal, Yirgin, J., after stating the common law 
 principle governing contracts, and the change wrought by 
 the statute of frauds, said: "The statute did not declare 
 such contracts illegal, or void, but simply said they should 
 not be actionable, with certain exceptions, unless evidenced 
 by written evidence." The memorandum is the evidence by 
 which the contract is to be proved; l it is a condition preced- 
 ent to the right to sue. 
 
 The signature of the parties to be charged is sufficient. 2 
 
 While contracts must be founded upon a legal considera- 
 tion, it was not necessary, even at common law, that it be 
 expressed. 3 
 
 In Maine it was never considered requisite under the 
 statute of frauds, even, that the consideration be recited in 
 the note or_meraorandum. 4 
 
 The distinction between sections 4 and 17 of the English 
 statute of frauds, set up in the English courts, and followed 
 by some of the courts of the states, has never been recog- 
 nized in that state. The case of Packard v-. Richardson 5 
 seems to have settled that question. 
 
 "The courts," said Willis, J., in Gibson v. Holland, 6 
 " have considered the intention of the legislature to be of a 
 mixed character ; to prevent persons from having actions 
 
 i Lawrences. Chase, 54 Me., 196. 397; Bean v. Burbank, 16 Me., 
 
 See the able opinion in Bird v. 458. 
 
 Munroe, 66 Me., 337, 343; Middle- *Levy v. Merrill, 4 Me., 180, 189; 
 
 sex Co. v. Osgood, 4 Gray, 447. King v. Upton, 4 id., 387 ; Gillighan 
 
 2 Barstow v. Gray, 3 Me., 409; v. Boardman, 29 id., 81. 
 
 Getohell v. Jewett, 4 Me., 350; or 5 17 Mass., 122. 
 
 by both. Atwood v. Cobb, 16 e l. R. 1. C. P. 1. ; Bradford v. 
 
 Pick., 227. Spyker, 32 Ala., 134; Philbrook v. 
 
 s Cummings v. Dennett, 26 Me., Belknap, 6 Vt., 383. 
 
CHAP. XX.] MEMOKANDUM OK NOTE IN WKITING. 329 
 
 brought against them, so long as no written evidence was 
 existing when the action was instituted." 
 
 And as was said in "Williams v. Morris, 1 the memorandum 
 must be complete, leaving no jus deliberandi or locus peni- 
 tentice; it must show a conclusion. 
 
 § 401. It should be steadily borne in mind that the eon- 
 tract, and the memorandum, which is requisite to its validity, 
 are in their nature distinct, the one from the other. 2 They 
 need not be made simultaneously. The memorandam may 
 be made long after the bargain, but before an action is 
 brought, and may be comprised of letters and documents. 
 Hence it will be observed that the evident intention of the 
 legislature was, to prevent parol contracts from being en- 
 forced in a court of law, unless the existence of certain 
 requirements are shown. 
 
 § 405. Although the language of the statute of frauds 
 differs in the several states, as already shown, it is settled 
 that the memorandum, to possess any binding force, must 
 contain all the essentials of the contract. It must be in in- 
 telligible terms ; it must express the price ; 3 the quantity of 
 the goods ; the identity of the persons ; and the intention 
 of the parties to the contract. These must appear with 
 such explicitness as to be understood without recourse to 
 parol proof. Mr. Justice Cooley, delivering the opinion of 
 the court in a recent case, said that the memorandum must 
 be complete in itself, and leave nothing to rest in parol. 4 To 
 
 195 U. S. S. C, 456. will well repay an examination 
 
 2 He v. Stanton, 15 Vt., 690; and perusal. 
 
 "Webster v. Zielly, 53 Barb., 482; *I&ev. Stanton, 15 Vt., 685. 
 
 Davis v. Moore, 13 Maine, 424; 4 Kelly v. Kelly, The Reporter, 
 
 Hunter v. Girldings, 97 Mass., 41; vol. 17, p. 179; Hall v. Soule, 11 
 
 Marsh v. Hyde, 3 Gray, 333; North Mich., 494; James v. Muir, 33 id., 
 
 v. Mendel, 71 Georgia E. ; Steel v. 223; Sovereign v. Ortman, 47 id., 
 
 Fife, 48 Iowa, 99; Neelson v. San- 181: McElroy v. Buck, 35 id., 434; 
 
 borne, 2 N. H. R., 381, 414. In Gurney v. Collins, 7 Western R., 
 
 Weightman v. Caldwell, 4 Wheat., 670; Jenness v. Mount Hope Iron 
 
 89, may be found an elaborate Co. , 53 Maine, 20 ; Beckwith v. Tal- 
 
 note on the subject of note or bot, 95 U. S. R., 289; Nichols v. 
 
 memorandum in general, which Johnson, 10 Conn., 192, 198; Bellus 
 
330 SALES. [chap. XX. 
 
 this general rule, however, there will be found some excep- 
 tions. Parol evidence may be admitted to show the iden- 
 tity of a party in certain cases. Thus, where A., as agent 
 for B., enters into a contract with C, but in his individual 
 name, C. may show that B. is the real party in interest, al- 
 though A.'s name only appears. But A. cannot prove that 
 he is not the real party to the agreement. 1 There is, how- 
 ever, some conflict of opinion on this point. 2 
 
 § 406. The memorandum must show the name of the 
 party in whose favor he is charged. 
 
 In McElroy v. Seery, 3 one Hall, trading as " T. Francis 
 Hall & Co.," ordered, through one Richards, a salesman of 
 the appellee, a bill of merchandise on sixty days' credit, to 
 be delivered at Baltimore. Richards made the following 
 memorandum: " T. F. Hall & Co., 88 South Charles street, 
 Baltimore, Maryland." Then followed items of the goods. 
 
 The court, Robinson, J., after referring to the object of 
 this particular clause of the statute of frauds (which in that 
 state is the same as the seventeenth section of the English 
 statute), held that the memorandum was not sufficient, 
 principally on the ground that it did not show who were 
 the contracting parties. 
 
 § 407. The authorities agree that the contract must be 
 stated with reasonable certainty, so that its substance will 
 appear from the writing itself. But the memorandum need 
 not stipulate for any time or place of delivery, as the law 
 will supply terms and fix a reasonable time. 
 
 But if the time and place of delivery are stipulated for, it 
 goes to the essence of the contract and must appear in the 
 written memorandum. 
 
 v. Keyser, 17 Fla., 100; Benjamin 226; Brooks v. Minturn, 1 Cal., 
 
 on Sales, §§ 221, 231. 481 ; Hubbert v. Borden, 6 Wheat., 
 
 1 Brown v. Sanborn, 21 Minn., 79; Huntington v. Knox, 7 Cush., 
 
 402; Cummings v. Arnold, 3 Met., 371; Higgins v. Senior, 8 M. & W., 
 
 486. 834. 
 
 2 Lerned v. Johns, 9 Allen, 419; 8 61 Maryland R., 389; 48 Am. 
 
 Violett v. Powell, 10 B. Monroe, R., 110. 
 347; Newcomb v. Clark, 1 Demo, 
 
CHAP. XX.] MEMOKANDUM OE NOTE IN WEITING. 331 
 
 The cases in general hold that the consideration upon 
 which the promise is founded in contracts for the sale of 
 goods need not be formally expressed. 
 
 § 408. Smith v. Shell : was an action for damages for the 
 breach of a contract for the sale and delivery of one thou- 
 sand barrels of corn alleged to have been purchased by the 
 plaintiffs of the defendant. The evidence was conflicting 
 as to what the contract really was. Judgment was rendered 
 for the plaintiff, which, on appeal, was reversed. The court, 
 Henry, J., substantially held that, while it might defeat the 
 law to allow a party who has signed a contract to prove by 
 parol that there were other stipulations, if the party seeking 
 to enforce it voluntarily comes into court and testifies that 
 the contract stated in the memorandum is not, in fact, the 
 contract made, it would contravene no public policy to re- 
 fuse him redress for a breach of the contract, either that 
 actually made or the one evidenced by the written memo- 
 randum. The court in this case decided that as the contract 
 actually made was not contained in the memorandum, it 
 could not be enforced. 
 
 In Ellis v. Bray, 2 however, it seems to be held that where 
 the memorandum does not purport to be a complete expres- 
 sion of the entire contract, or a part only if it is reduced to 
 writing, the matter omitted may be supplied by parol evi- 
 dence. 
 
 § 409. The memorandum must be signed before action is 
 brought and be in accordance with the statute of the state 
 where the contract is made. These are inflexible rules, 
 whether the memorandum be composed of documents and 
 letters or simply expressed in one sheet of paper. 3 
 
 The decisions quite uniformly hold that it is not necessary 
 that the original agreement shall be in writing, but the 
 writings of the person sought to be charged, made after the 
 making of the contract, at any time before the action is 
 
 182 Mo., 217; Lyle v. Shinne- 3 Heideman v. Wolfstein, 12 Mo. 
 barger, 17 Mo. App., 67. App„ 368. 
 
 2 79 Mo., 227. 
 
332 
 
 SALES. 
 
 [chap. XX. 
 
 commenced, is sufficient if the terms of the bargain are 
 clearly expressed and relate to the particular subject of the 
 contract. 1 
 
 What the statute requires is, not that the contract itself 
 shall be in writing, but the evidence of it must he. 
 
 % 410. The memorandum is not sufficient to sustain an 
 action upon, unless the parties to the contract are either 
 named in terms, or are so designated in some paper signed 
 by them as to be identified without resorting to parol proof. 2 
 The cases on this question are numerous and somewhat 
 variant. It is well settled, however, that the memorandum 
 satisfies the statute if it be signed oy the party to oe charged, 
 where the other party is designated. 3 
 
 § 411. In general, in accordance with the rules of evi- 
 dence, the presumption always arises that the memorandum 
 contains everything intended by the parties. 
 
 Therefore, whatever may have been said at the time the 
 bargain was made, not incorporated in the memorandum, 
 will be disregarded. It cannot be used as evidence. 
 
 To this proposition there are some exceptions. 4 
 
 1 Whaley v. Hinchman, 22 Mo. 
 App., 483; Thompson v. Menck, 4 
 Abb. App. Dec. , 400 ; Williams v. 
 Bacon, 2 Gray, 387; Webster v. 
 Zielly, 52 Barb., 482. 
 
 2 Williamson v. Robinson, 73 Me., 
 186; 42 Am. E., 352; Getchell v. 
 Jewett, 4 Me., 350, 497; At wood v. 
 Cobb, 16 Pick., 227; Grafton v. 
 Cummins, Sup. Ct. U. S. , Washing- 
 ton Law R. (Sept., 1879), p. 407. 
 
 3 Smith v. Jones, 66 Ga. , 338 ; Al- 
 len v. Bennett, 3 Taunt., 169; Cham- 
 pion v. Plummer, 4 Bos. & Pul., 
 452; Morin v. Martz, 13 Minn., 191; 
 Wemple v. Knopf, 15 id., 440; Jus- 
 tice v. Lang, 42 N. Y., 494; McMil- 
 len v. Terrell, 23 Ind., 163; Newby 
 v. Rogers, 40 id., 9; Dressell v. 
 Jordan, 104 Mass., 407; Slater v. 
 
 Smith, 117 Mass., 96; Gartrell v. 
 Stafford, 12 Neb., 546. 
 
 4 Gardner v. Hazelton, 121 Mass., 
 494; Riley v. Farnsworth, 116 id., 
 223; Bacon v. Eccles, 43 Wis. R., 
 227: Gwathney v. Cason, 74 N. G, 
 5; O'Neil v. Crain, 67 Mo., 250; 
 McElroy v. Buck, 35 Mich., 434; 
 Morris v. Blair, 39 Ind., 90; Board- 
 man?;. Spooner, 13 Allen, 353; Hen- 
 derson v. Cotter, 15 XJ. G Q. B., 345 ; 
 Burges v. Wickbam, 3 B. & S.,669, 
 Blackburn, J. But see opinion of 
 Williams, J., in Chapman v. Lang- 
 don, 34 L. J. Q. B., 46; Fawkes v. 
 Lamb, 31 id., 98. The statute of 
 frauds leaves all this law quite as it 
 was before. Benjamin on Sales, 
 205. 
 
CHAP. XX.] MEMORANDUM OR NOTE IN WRITING. 333 
 
 § 412. It has been laid down as a reasonable rule under 
 the statute of frauds, that if there is an agreement to do 
 something not expressed on the face of the memorandum, 
 and that something to be done is included in another piece 
 of writing, parol evidence may be admitted to show what 
 that particular writing contains, so that together they may 
 constitute a binding contract. 1 
 
 Illustration: If A. agrees to build an omnibus for B., 
 and the description of it is put in writing, and the price is 
 agreed upon by parol, or vice versa; or, if the parties say, in 
 substance: " We agree to what is contained in such a writ- 
 ing, with such additions and exceptions as we now agree 
 upon by word of mouth," the contract would be upheld, for 
 under such circumstances parol testimony would be ad- 
 missible to show what the additions or exceptions were, 
 and the memorandum would be conclusive as to the rest. 2 
 
 § 413. Thus, in Kriete v. Myer, 3 no time was mentioned 
 in the memorandum, nor was there any time fixed upon in 
 the parol agreement for the delivery of the goods. 
 
 It appeared that Waidner & Co., as agents of Kriete, the 
 appellant, sold to Myer & Co., the appellees, a quantity of 
 canned fruit. 
 
 The memorandum was as follows : 
 
 " Baltimore, May 12, 1882. 
 
 " Sold to Messrs. T. J. Myer & 'Co., for account of E. 
 ~W. Kriete, (1,000) one thousand cans 3 lbs. standard peaches, 
 half yellow, next season's packing, at $1.80 per doz., 60 
 days or less, If per cent, off for cash from date of delivery, 
 said peaches to be fully equal to his last season's packing. 
 (Signed) " H. A. Waidner & Co." 
 
 Kriete refused to deliver the goods. 
 
 iRidgway v. WHarton, 6 H. L. 3 61 Maryland R, 558. See, also, 
 
 Cas., 257. See Rhodes v. Castner, Parker v. Wallis, 60 Maryland R., 
 
 12 Allen (Mass.), 130; Lee v. Ma- 15; Young v. Mertens. 27 id., 114; 
 
 honey, 9 Iowa, 344. Salmon Falls Manufacturing Com- 
 
 2 McBride v. Silverthorn, 11 U. pany v. Goddard, 14 How. (U. S.), 
 
 C. Q. B., 545; Caldwell v. Green, 8 R., 446. 
 id., 327. 
 
334: SALES. [CHAP. XX. 
 
 His defense was, that the memorandum of the date dif- 
 fered from the parol contract ; that the parol contract fixed 
 a special date, on or before which the goods were to be de- 
 livered ; and that, as the memorandum did not contain such 
 " special date," no recovery could be had. 
 
 But Stone, J., held that the law in such case will imply- 
 that the seller was to deliver the goods within " a reasonable 
 time." What is a reasonable time, ex necessitate rei, will 
 depend upon the surrounding circumstances and the char- 
 acter of the goods dealt in. If there be an established cus- 
 tom regulating the delivery of the particular goods which 
 are the subject of the action, such custom will control. 
 
 § 414. As already in effect shown, parol testimony may 
 be admitted to supply certain omissions, where the mem- 
 orandum does not purport to be a complete expression of 
 the contract, if the evidence offered to explain it is not con- 
 tradictory of the writing. 1 
 
 Thus, a memorandum which omits to state the time of 
 the delivery of the goods contemplated by the contract is 
 not void on that account. For in such case the law will 
 supply the omission by implying that the goods were to be 
 delivered within a reasonable time. 
 
 So if the contract be incomplete and yet sufficiently defi- 
 nite and certain on its face, parol evidence is admissible to 
 explain and apply it to the contract actually existing. It 
 was so held in an important case recently decided in the 
 court of last resort in Missouri. 
 
 In Lash v. Parlin 2 the following memorandum was the 
 basis of the action: 
 "Messes. Paelin & Oeendoeff: 
 
 " Gentlemen — Please execute the following order for 
 plows, cultivators, . . . etc., to be delivered on board 
 cars in Chillicothe, Mo., marked for J. P. Lash, No. 6, four- 
 teen-inch cut, medium, steel landside old ground plows 
 
 lO'Neil v. Crain, 67 Missouri, id., 227. See, also, Christie v. Bur- 
 250, Norton, J. ; Ellis v. Bray, 79 nett, 10 Ontario E., 617. 
 
 12 78 Mo., 397. 
 
CHAP. XX. J MEMORANDUM OE NOTE IN WEITING. 335 
 
 iron beam, $22; No. 7 (extra), sixteen-inch cut, medium 
 steel landside, three-horse, old-ground plows, iron beam, $22, 
 and other items of plows in detail. Cultivators — iron beam, 
 Parlin's patent, with shields, $14.50; wood beam, Parlin's 
 patent, with shields, $13.50. For which I agree to give you 
 my notes, payable with exchange, or by express, prepaid, 
 at above list, for plows, less forty-five per cent., and payable 
 all January 1, 1879, with ten per cent, interest, cultivators 
 less net per cent, and payable January 1, 1879, with ten 
 per cent, interest. 
 
 " Paelin & Oeendoeff, per Taylor." 
 
 The court held that, although this memorandum did not 
 constitute a complete contract, it was sufficient as between 
 the parties to be admissible in evidence. That parol evi- 
 dence might be introduced to explain and apply it to the 
 contract thus made. 
 
 The doctrine there enunciated is in accordance with the 
 decisions of that state. 1 
 
 § 415. "Where the note or memorandum does not clearly 
 define the article, thing or property to be delivered, while 
 comparisons in degree or quality will not be allowed, parol 
 evidence may be admitted to identify the subject-matter. 
 Thus in the case of Pike v. Fay, 2 where " white willow cut- 
 tings " were contracted for, parol evidence was admitted to 
 enable the purchaser to show that the sale was by sample, 
 and the article tendered did not correspond with such sam- 
 ple. Parol evidence is likewise admissible to explain and 
 show what was meant by certain terms and phrases men- 
 tioned in the contract, 3 even if the terms or phrases are not 
 
 iMoss v. Green, 41 Mo., 389; Zabr. (N. J.), 96 ; Foley v. Mason, 6 
 
 Briggs v. Munchon, 56 id., 467; Md., 37. 
 
 Moore v. Mountcastle, 61 id., 425, 3 F. G. " consigned to M. & S." at 
 
 and Eidgway v. Ingram, 50 Ind. the bottom of a bill of parcels, goods 
 
 E., 145. sold, George v. Joy, 19 N. H., 544; 
 
 2 101 Mass., 134, 137; Benjamin and " terms cash " on a bill, and in 
 
 on Sales, 213; Sweet v. Shumway, a memorandum "bought 150 tons 
 
 102 Mass., 365; Hart v. Hammett, of madder, 12£, 6.ms.'' Dant v. 
 
 18 Vt., 127; Gray v. Harper, 1 Fielder, 2 Kernan, 40. 
 Story, 574; Steward v. Scudder, 4 
 
336 SALES. [chap. XX. 
 
 technical, scientific or ambiguous. The price may also be 
 ascertained by parol 'proof, if it was not agreed upon when 
 the bargain was made. 1 
 
 In Salmon Falls Manufacturing Company v. Goddard, 2 
 the following memorandum was held sufficient under the 
 statute, although certain terms had to be explained by ex- 
 traneous evidence: 
 
 " September 19, W". "W. Goddard, 12 mos. 300 bales S. F. 
 drills, 7£; 100 cases blue do., 8f. Credit to commence when 
 ship sails, not after December 1 — delivered free of charge 
 for truckage. The blues, if color satisfactory to purchaser. 
 (Signed) E. M. M., W. W. G. " 
 
 § 416. In Schultz v. Bradley 3 it is held that an executory 
 contract for the sale of a specific quantity of goods cannot 
 be modified by a parol agreement increasing the quantity to 
 be delivered, and so engraft it on the original contract as to 
 escape or evade the rule prescribed by the statute of frauds. 
 
 § 417. In Macomber v. Parker, 4 Wilde, J., enunciated the 
 controlling principle in such cases. He said that where any 
 operation of weight, measurement, counting, or the like, 
 remains to be performed, in order to ascertain the price, 
 the quantity, or the particular commodity to be delivered, 
 and to put it in a deliverable state, the contract is incom- 
 plete until such operation is performed. 
 
 § 418. So also Parker, C. J., in the early case of Higgins 
 v. Chessman, 5 held that if, at the time of the contract, it is 
 understood and intended that some after-act is to be done to 
 complete the sale, such as a formal delivery, or a bill of 
 sale, the transfer is not complete until such act is done. 
 
 1 Whitmarsh v. Cod way Ins. Co., 1887; Lingham v. Eggleton, 27 
 
 16 Gray, 359 ; Hoadley v. McLaine, Mich., 324. 
 
 10 Bing., 482. 5 9 pi k. (Mass.), 7 ; Byles u Col- 
 
 2 14 How. (U. S.), 446. lier, 54 Mich., 1 ; Eopes v. Lime, 11 
 
 3 57 N. Y., 646; Brown v. San- Allen (Mass.), 591; Stone v. Pea- 
 born, 21 Minn., 402. cock, 35 Maine, 3S5; Marble v. 
 
 * 13 Pick. (Mass.), 175, 183; "War- Moore, 102 Mass., 443; Foster v. 
 
 ner v. Feige, 8 "West. Reporter, Eopes, 111 Mass., 10. 
 143, decided in Michigan, Feb., 
 
CHAP. XX.] MEMORANDUM OK NOTE IN WRITING. 337 
 
 And it was so substantially held in Champion v. Plumraer, 1 
 where the plaintiff, by his agent, wrote in a memorandum 
 book the terms of a verbal sale to him by the defendant, 
 and the defendant signed the writing, but the words were 
 simply, " bought of W. Plumnier," etc., with no name of 
 the person who bought. 
 
 § 419. In the light of numerous authorities, it may be 
 observed that the intention of this clause of the statute of 
 frauds is not to declare void a contract in the absence of 
 the formalities prescribed, nor to dispense with the proof 
 of consideration which is necessary under the common law ; 
 nor is any additional efficacy given to written contracts 
 over and beyond what they previously possessed. 2 It aims 
 to define the exact line between the negotiation and the 
 contract. 
 
 While the statute contemplates and presupposes a con- 
 tract by parol, it in no wise contravenes the principles of 
 the law of evidence relating to written contracts. Hence 
 a reasonable construction is that, if the party to be charged 
 has put his signature to a note or memorandum, in com- 
 pliance with the statute of the state where the contract is 
 made, it is sufficient. The legal effect of a contract in 
 writing is the same as it was before the statute was passed. 
 The common law principle is, that a person entering into 
 a contract may either reduce the same to writing, or may 
 refer to some paper, letters, or documents, in existence em- 
 bodying its terms, and in such case the parties are bound 
 by what is thus written, and neither party can offer oral 
 proof of any other or different agreement. 3 
 
 !4 Bos. & Put, 252; Allen v. Townsend v. Hargraves, 118 Mass., 
 
 Bennett, 3 Taunt, 169; Jacob v. 334. 
 Kirk, 2 Moody & Rob., 222. 3 1 Chitty on Contr. (11th Am. 
 
 2 2 Kent's Comm., 493, 494; Day ed.), 153, and note IT; Pitcher v. 
 
 v. New York Central R. R. Co., 51 Hennessy, 48 N. Y., 415: Small v. 
 
 N. Y., 583; Rosepaugh v. Vreden- Quincy, 4 Greenl., 497; Tayloe v. 
 
 burgh, 16 Pick., 60; Boyden v. Riggs, 1 Peters (U. S.), 591 ; Stoops 
 
 Crane, 7 Alb. L. Jour., 203; Bas- v. Smith, 100 Mass., 63; Groot v. 
 
 ford v. Pearson, 9 Allen, 387; Story, 44 Vt., 200. See Bk. of Br. 
 
 Jelleson v. Jordan, 68 Me., 373; N. A. v. Simpson, 24 C. C. P., 354. 
 23 
 
338 SALES. [chap. XX. 
 
 § 420. In Christie v. Burnett x several letters were intro- 
 duced in evidence, which, read together in the light of the 
 parol evidence which was allowed, were held sufficient to 
 constitute a note or memorandum in writing within the 
 seventeenth section of the statute of frauds. The court, 
 Armour, J., in the course of his opinion delivered in the 
 case, says that parol evidence is always admissible to show 
 the situation of the parties at the time the writing was 
 made; the circumstances under which it was made; the 
 time when it was made, and the relative trades of the re- 
 spective parties. 
 
 So, also, terms may be explained by parol in such 
 cases. 
 
 § 421. While some of the decisions hold that the con- 
 tract must be mutual in order to be binding, the more re- 
 cent cases have decided that the party to be charged, having 
 subscribed the contract (according to the statute of the 
 state where it is made), he cannot set up the statute in bar. 
 It follows, therefore, that it is not necessary for both the 
 vendor and vendee to sign the memorandum. But the 
 name of the party in whose favor he is charged must some- 
 where appear in the writings. 
 
 § 422. In the early case of Lawrenson v. Butler. 2 Lord 
 Ch. Bedesdale advanced the doctrine which for a time was 
 considered sound, that to decree performance of a contract 
 when one party only was bound would make ' ; the statute 
 really a statute of frauds," for it would enable any person 
 who had procured another to sign an agreement to make it 
 depend on his own will and pleasure whether it should be 
 an agreement or not. 
 
 This opinion emanating from such high authority caused 
 the courts for a time to pause ; but they afterward em- 
 braced the sounder doctrine, and one more in consonance 
 
 110 Ontario R., 617. See, also, 52; Benjamin on Sales, Corbin's 
 Sweet v. Lee, 3 M. & G., 466; ed., § 211 et seg. 
 Newell v. Rudford, L. R., 3 C. P., 2 Sch. & Lef., 13. 
 
CHAP. XX.] MEMORANDUM OR NOTE IN WRITING. 339 
 
 with the statute, that, if the party to be charged was bound, 
 it was sufficient. 1 
 
 It seems that the contract is good or not at the election 
 of the party who has not signed. 2 
 
 It is always competent to show the surrounding circum- 
 stances under which the memorandum was made in order 
 to facilitate the remedy sought. 3 
 
 § 423. The universal construction given by the courts, 
 that the memorandum in writing need only be signed by 
 the party to be charged, has proceeded, not on the ground 
 that contracts may not be mutual, but that the statute, in 
 Certain enumerated cases, has taken away the power of en- 
 forcing contracts which would otherwise be mutually bind- 
 ing, unless the parties against whom they are sought to be 
 enforced have subscribed some note or memorandum thereof 
 in writing. 
 
 Thus, if a contract is made, and one of the parties to it 
 gives the other a sufficient memorandum, but neglects to 
 take a corresponding one from him, he has but himself to 
 blame if he is unable to compel its performance, while he is 
 himself bound. 4 
 
 And it may be doubted, said the court in Smith v. Shell, 5 
 whether a party who has signed a memorandum can after- 
 ward claim that it does not contain all the terms of sale 
 and is, therefore, insufficient ; but it is clear that if the plaint- 
 iff himself shows such a state of facts he will be nonsuited. 
 And no one but the parties to the contract can successfully 
 raise the question or objection that the contract is void by 
 the statute of frauds. 6 
 
 1 "Western v. Russell, 3 Vesey & 4 Williams v. Robinson, 73 Me., 
 Beames, 192 ; Ormond v. Anderson, 194; Thornton v. Kempster, 5 
 2 Ball & Beatty, 370; Barstow v. Taunt., 786; Reuss v. Picksley, L. 
 Gray, 3 Greenl., 409; but see Cabot R., 1 Ex., 342; 35 L.J. Ex., 218; 
 v. Hoskins, 3 Pick., 83. Starkie on Ev., vol. 2, p. 614. 
 
 2 Ivory v. Murphy, 36 Mo., 534 ; 5 82 Mo., 217 ; 18 Cent. Law Jour., 
 Dresel v. Jordan, 104 Mass., 412; 478. 
 
 Benjamin on Sales, 255. 6 Brown v. Hall, 5 Lansing, 177. 
 
 a Stoops v. Smith, 100 Mass., 63. 
 
340 sales. L CHAP - xx - 
 
 § 423a. Although there may be found cases to the con- 
 trary, it is well settled that the only signature required is 
 that of the party against whom the contract is sought to be 
 enforced. Hence the party designated in the memoran- 
 dum, although he has not signed it, may at his election en- 
 force the contract against the party who has signed it. In 
 fact he is the only one who can. But the contract cannot 
 be enforced against the party who has not signed the mem- 
 orandum. 1 
 
 § 424. The principal question 'presented in Drury v. 
 Young 2 was, whether the note or memorandum must be de- 
 livered to the other party. 
 
 The statute is silent on the question of the delivery of 
 the memorandum. Under the English adjudications it is 
 held that the note or memorandum in writing is equally 
 corroborative, whether it passes between the parties to the 
 contract themselves or between one of them and his own 
 agent. 
 
 After referring to Benjamin on Sales, Gibson v. Holland, 3 
 and some other English cases, Stone, J., said that, from 
 these authorities and the reasons upon Avhich they were de- 
 cided, he was of opinion that delivery is not essential to the 
 validity of the note or memorandum of sale. 
 
 § 425. "While the memorandum is not required to be 
 drawn in any prescribed form, and may be composed of 
 several writings, such as documents, letters, etc., which may 
 be construed together, the contract as gathered must be 
 certain and complete. 4 The contract may be proved by 
 
 1 Mason v. Decker, 72 N. Y., 595; 3 1 Law Rep. C. P., 1; Johnson 
 
 Dresel v. Jordan, 104 Mass. , 412 ; v. Dodgson, 2 Mees. & "Welsby, 053. 
 
 Newby v. Rogers, 40 Ind., 9; Ide 4 Brown v. "Whipple, 58 N. H., 
 
 v. Stanton, 15 Vt., 687; Getchell v. 229; Tallman v. Franklin, 4 Ker- 
 
 Jewett, 4 Greenl., 350; Old Colony nan, 584; Smith v. Arnold, 5 Ma- 
 
 R. R. Co. v. Evans, 6 Gray, 25 ; son, 416 ; Coddington v. Goddard, 
 
 Ivory v. Murphy, 36 Mo., 534; Wor- 16 Gray, 443; Lerned v. Wanne- 
 
 rall v. Munn, 1 Seld., 229; Lowery macher, 9 Allen, 412; Jackson v. 
 
 v. Mehaffy, 10 Watts, 387; Doug- Lowe, 1 Bing., 9; 2 B. & P., 23S; 
 
 lass v. Spears, 2 Nott & McC, 207. Ridgway v. Ingram, 50 Ind., 145; 
 
 2 58 Md., 552. Oakman v. Rodgers, 120 Mass., 214 ; 
 
CHAP. XX.] MEMORANDUM OK NOTE IN WRITING. 341 
 
 parol; and the memorandum may be supplied by letters, 
 written at various times, if they all appear to have relation 
 to it. But even if letters have passed between the buyer 
 and seller of goods, they do not constitute a sufficient writ- 
 ing to satisfy the statute of frauds if they vary in their 
 description of the terms of the contract. 
 
 A printed bill of parcels delivered by the vendor to the 
 vendee at the time of the sale, and a subsequent letter writ- 
 ten and signed by the vendor, referring to the sale, has been 
 held sufficient. 1 The signature to the memorandum by the 
 party sought to be charged estops him from denying that 
 the contract was legally executed. 2 
 
 § 426. The case of Beckwith v. Talbot 3 discusses the 
 question, among others, whether the memorandum required 
 under the statute may be in several parts and of different 
 dates. The case arose out of an agreement between the 
 plaintiff, the defendant and two other persons to sell on 
 shares two thousand two hundred and five head of cattle. 
 
 Several letters of the defendant to the plaintiff were in- 
 troduced in evidence, and the question was whether they 
 were sufficient to constitute a valid contract under the stat- 
 ute of frauds. 
 
 After quoting Browne on Frauds to the effect that the 
 memorandum need not be contained in a single paper, 
 Brazee, J., says : " It is a well established rule of law that 
 the note or memorandum evincing the agreement may be 
 on one or many pieces of paper, contemporaneous, or of 
 different dates." 
 
 After giving the dates, and extracting from the several 
 
 Thompson v. Menck, 4 Abb. App. & Pul., 238 (1800); Lee v. Hillis, 60 
 
 Dec, 400; Calkin v. Falke, 1 Abb. Ind., 474. 
 
 Ct. App. Dec, 291 (1869); Phillips 2 2 Kent's Comm., 510; Getchell 
 v. Ocmulgee Mills, 55 Ga., 633; v. Jewett, 4 Me., 350, 366; Will- 
 Bird v. Monroe, 66 Me., 337; Hunter iams v. Robinson, 73 Me., 194. But 
 v. Giddings, 97 Mass., 41; McCaul see Atwood v. Cobb, 16 Pick., 227; 
 v. Straus, 1 C. & E., 106; Elliott v. Small v. Quincey, 4 Me., 497. 
 Dean, 1 id., 283. 3 2CoL, 639. 
 iSaunderson v. Jackson, 2 Bos. 
 
342 SALES. [CHAP. XX. 
 
 letters which were introduced in evidence, showing that 
 they referred to the memorandum signed by the parties, 
 the learned justice further says that it is said, in some of 
 the cases, " that the mutual relation of the writings must 
 appear upon their face, and cannot be shown by parol evi- 
 dence," but that this rule is not uniform. 1 He held that 
 the rule had no application in this case, as the party sought 
 to be charged voluntarily introduced parol evidence to con- 
 nect the writings, and that the letters, with the agreement, 
 constituted such a memorandum subscribed by the party to 
 be charged as takes the contract out of the statute of 
 frauds. 
 
 § 427. By the general statutes of the state of Colorado, 
 a note or memorandum of the contract is required to be in 
 writing and subscribed by the parties to be charged there- 
 with. 2 
 
 In the case of Coon v. Eigden, 3 it appeared that February • 
 15, 1876, certain cattle and other chattels were sold by 
 John H. Eigden to one Yeager, under a bill of sale. On 
 April 18 following, Yeager sold the same property to Caro- 
 line Eigden, also b}? bill of sale. 
 
 April 20, 1877,- Yeager sued out of the district court a 
 writ of attachment against the goods and chattels, etc., of 
 said John H. Eigden, which was levied by the sheriff upon 
 the property thus transferred, as the property of said 
 Eigden. 
 
 On May 23, following, Caroline Eigden brought an ac- 
 tion of trespass in the court against Yeager, and Coon, the 
 sheriff, who made the levy. 
 
 On the trial a verdict was rendered for the plaintiff. 
 
 Yeager and Coon appealed. 
 
 There does not seem to have been any actual delivery 
 under either sale. In each case the possession remained 
 with Eigden. 
 
 1 Lee v. Mahoney, 9 Iowa, 344. 2 Gen. Stat. (1883), § 1521, subd. 4. 
 See, also, Jackson v. Lowe, 1 8 4 Col., 275. 
 Bing., 9. 
 
CHAP. XX.] MEMORANDUM OR NOTE IN WRITING. 343 
 
 The court held that as between the parties actual deliv- 
 ery was not necessary; that title to chattels may pass 
 though the possession may not change. 
 
 It was objected that the bill of sale from Teager to the 
 plaintiff was not subscribed, and was therefore void under 
 the statute of frauds. 
 
 It appeared that across the face of the bill of sale were . 
 written the words : " Received of Caroline Eigden the sum* 
 of eleven hundred and twenty-five dollars." 
 
 Elbert, J., says : " The bill of sale and the receipt are evi- 
 dently but parts of an entire contract. The one evidences 
 the sale, and the other the payment of the purchase money. 
 Why it was written across the face of the bill of sale does 
 not appear. It may have been for want of space at the 
 bottom of the page, or the whim of the party who drafted 
 it. It is immaterial. The receipt stands at the end of the 
 • contract, and is subscribed by Yeager. This is a subscrip- 
 tion of the entire contract, as much as if the receipt fol- 
 lowed the bill of sale upon the same or the next page. To 
 say otherwise would be an unwarranted refinement in test- 
 ing the ordinary business transactions of daily life by the 
 requirements of the statute." 
 
 The judgment of the court below was affirmed. 
 
 § 428. It was held to be a sufficient memorandum to 
 satisfy the statute where the defendant signed a letter can- 
 celing a contract, and referring to an inclosed invoice, 
 which contained all the terms of the contract. 
 
 Thus, in Elliott v. Dean, 1 the defendant wrote to the 
 plaintiff as follows : 
 
 " July 17, 1882. 
 "Mr. Elliott: 
 
 " Sir — Owing to the warehouse stopping our machines, 
 the stuff you have on order will not be wanted. Therefore 
 I am sorry to say that I must cancel all orders you have 
 got down for me. Sir, I remain yours, 
 
 " James Dean." 
 
 1 Cababe & Ellis, N. P. R., 283. 
 
344 SALES. [chap. XX. 
 
 Ten days thereafter another letter was written, as fol- 
 lows: 
 
 " July 27, 1882. 
 " Me. Elliott : 
 
 " Sir — I return invoice that you sent us. I must also in- 
 form you that it is no use now. "We have canceled the order, 
 and I shall be surprised if you persist in sending either the 
 spun or the invoice again, for we shall not have it under 
 any circumstances whatever. 
 
 " Sir, I remain yours, 
 
 "James Dean." 
 
 The invoice inclosed in the letter contained all the terms 
 of the contract proved, save that the contract proved was 
 of a sale pf forty-four bundles of silk, while the invoice 
 specified the quantity as four hundred and fifty -five pounds 
 eight ounces. At the trial it was shown that a bundle of 
 silk contained about ten pounds. 
 
 After stating the facts, Smith, J., said : " If the letter of 
 July 27 had stopped at the words ' no use now,' the case 
 would clearly have fallen within Wilkinson v. Evans, 1 where 
 the defendants gave their reason for refusing the cheeses. 
 But the letter goes on to say, ' we have canceled the or- 
 der.' " 
 
 It was contended that the memorandum was insufficient 
 because it showed that the defendant no longer regarded 
 the contract as existing, but the court thought that made no 
 difference. 
 
 He further says : " The true test is : Does the defendant 
 by his writing recognize and adopt the writing as embody- 
 ing the terms which the parties had previously agreed 
 upon? " Bailey v. Sweeting 2 strongly supports this view. 
 
 Judgment was for the plaintiff. 
 
 Where the letters or memorandum do not contain any 
 reference to the quality of, or the time of payment for, 
 
 1 1 L. E. C. P., 407; 35 L. J. C. 29 C . B. N. S., 843; 30 L. J. C. 
 P., 224. P., 150. 
 
OHAP. XX.J HEMOEANDUM OE NOTE IN WEITING. 345 
 
 goods sold as agreed upon, they do not constitute a suffi- 
 cient memorandum of the contract to satisfy the statute 
 of frauds. 1 
 
 In the above case, for anything that appeared by the let- 
 ters, the contract referred to might have been verbal. 
 
 " Hence," says the able Justice Stephen, " the case falls 
 within the well-known class of cases of which Peirce v. 
 Cort "- is the latest, in which, in the case of sales by auction, 
 it has been held that, if a signature by the auctioneer in his 
 book is relied on as a memorandum to satisfy the statute, it 
 is necessary that it should in some way refer to the condi- 
 tions of the sale." 
 
 § 429. One of the most recent and authoritative cases 
 upon the sufficiency of the memorandum is Doughty v. 
 Manhattan Brass Co. 3 There the contract relied upon was 
 contained in certain letters, and the question was whether 
 their true construction disclosed a valid contract under the 
 statute. 
 
 The appellants contended that they did not. The only 
 reference to price was contained in a postscript to the de- 
 fendant's letter, and that by itself was not subscribed. On 
 that ground, principally, it was contended that there was 
 no compliance with the statute. The defendant was a maker 
 of brass hoops. The plaintiffs, as manufacturers of cedar- 
 ware, required such article. They had dealt together for 
 several years before this transaction. 
 
 On September 12, 1879, the defendant wrote to the plaint- 
 iffs as to certain orders already received, and gave some 
 general information respecting the present and the probable 
 future price of brass, which letter was subscribed. Eelow 
 the signature were these words: "P.S. — Will make price 
 for November and December 17c. lb." 
 
 1 McCaul v. Strauss, 1 C. & Ellis, ruary 9, 1886. See 18 N. Y. Weekly 
 
 106. Dig., 327 ; Newbery v. WaH-, 65 N. 
 
 2 L. R., 9 Q. B., 210. Y., 484; Stagg v. Compton, 81 Ind., 
 
 3 101 N. Y. Rep., 644; Central 171; Atwell v. Miller, 6 Md., 10. 
 Reporter, vol. 2, p. 397, decided Feb- 
 
346 SALES. [chap. XX. 
 
 In an exhaustive opinion, Danforth, J., said : " It is plain 
 that the signature was intended to authenticate the paper, 
 and in such case it is immaterial upon what part it is placed, 
 whether at the beginning or the end, or in the middle. The 
 postscript was an afterthought, but it was verified as effectu- 
 ally for the purposes of correspondence, as if written in the 
 body of the letter to which it was added, and into which by 
 reference it may be deemed incorporated." 
 
 The plaintiffs, answering the said letter September 15, 
 1879, gave a written order, signed by them, for " two tons of 
 {% hoop brass, November 1st ; two tons, December 1st ;" and 
 under date of September 17th, the defendant wrote: "Tour 
 order for November and December to hand and booked." 
 
 In a letter dated October 6, 1879, defendant said: ""We 
 will not fail to ship one thousand pounds per week, or more, 
 until your order is filled." These writings were subscribed 
 by the defendant. The court: " If the letter of September 
 12th stood alone as containing the contract, it would be neces- 
 sary to hold that it was not subscribed within the intent of 
 the statute; 1 but all the letters above referred to are so 
 connected by their contents as together to constitute a note 
 or memorandum for the sale of four tons of hoop brass, at 
 seventeen cents per pound, to be delivered, one-half Novem- 
 ber 1st, and the other half December 1st. The proposal 
 and final acceptance import a consent of both parties, and 
 create an obligation on the part of the plaintiff to take and 
 pay for the same, as delivered." 
 
 Upon the other question raised by the appellant, that the 
 order of September 15th was indefinite, because it did not 
 specify the required thickness of the hoop nor a stipulated 
 time of payment, the court said, it is apparent that earlier 
 orders had been given, and in part filled, and the one in 
 question called for the same article, but at a different price; 
 if otherwise, however, there was neither ambiguity in the 
 contract nor any difficulty in performing it.according to its 
 terms. " No term of credit was bargained for, and, although 
 
 i James v. Patten, 6 N. Y., 9. 
 
CHAP. XX.] MEMORANDUM OK NOTE IN WRITING. 347 
 
 the complaint alleges that, by the agreement, payment was 
 to be made on the first of the month after the goods were 
 received, that allegation was not proved, and the question 
 presented was simply one of variance between the complaint 
 and proof, which the trial court might properly disregard." 
 
 The court, all concurring, decided that the writings taken 
 together were sufficient to express a contract, and the judg- 
 ment appealed from was affirmed. 
 
 This decision, emanating from so distinguished a tribunal, 
 merits as it will command the respect of courts generally. 1 
 
 § 430. Smith v. Colby 2 was an action upon an account 
 annexed for goods sold and delivered. 
 
 The answer set up a breach of a special contract to de- 
 liver. 
 
 A memorandum signed by the defendant was offered in 
 evidence in connection with two letters written by the 
 plaintiff to the defendant. The trial judge ruled that these 
 together did not prove the contract alleged. 
 
 The memorandum contained an agreement by the plaint- 
 iffs to furnish ten thousand croquet sets to the defendant at 
 a stated price; it was dated, " Lowell (where the defendant 
 lived), November 19, 1881 ; " the plaintiffs lived in Yermont. 
 
 The first letter is dated November 29, 1881, and in it, over 
 the plaintiffs' signature, are the words : " We will under- 
 take the croquet job upon the terms agreed upon when at 
 your place.''' The other letter is dated March 1, 1882, and 
 reads as follows : " "We wrote you that we would undertake 
 the job of ten thousand sets." 
 
 The court, W. Allen, J., thought the trial judge erred in 
 his ruling, for that the letters, on their face, sufficiently rer 
 f er to the memorandum. 
 
 He says: " The first letter must be presumed to refer to 
 
 iSee, also, Johnson & Miller v. 2 136 Mass., 562, decided in Feb- 
 
 Buck, 6 Vroom, 338; Richards v. ruary, 1884; Smith v. Jones, 66 
 
 Porter, 6 Bing., 437; 13 C. L. E., Ga., 338; Jones v. Isaacs, 4 N. & 
 
 202; Dobell v. Hutchinson, 3 A. McC, 563. 
 &B., 355; 30 Ch. E., 176. 
 
348 SALES. [CHAP. XX. 
 
 the agreement signed by the defendant and in the possession 
 of the plaintiffs, and the memorandum and that letter would 
 be sufficient to prove a memorandum signed by the plaint- 
 iffs within the statute of frauds ; and proof of such a memo- 
 randum is sufficient proof of a contract in writing as alleged 
 in the answer." 
 
 § 431. In Linsley v. Tibbals J the plaintiff having talked 
 with the defendant about hiring a strawberry patch of him 
 for a stated time, and delivering a mowing machine by way 
 of rent, the defendant wrote to the plaintiff a letter, saying: 
 " Set your strawberries; let me have the mowing machine." 
 This was held to be a sufficient memorandum under the 
 statute of frauds of Connecticut, and the action was sus- 
 tained. 
 
 § 432. In Buxton v. Rust 2 an agreement was made to 
 sell wool of greater value than £10. A. gave B. a written 
 memorandum of the terms of sale, containing the words, 
 " the whole to be cleared in about twenty-one days." B. 
 afterwards wrote to A.: "It is now twenty-eight days 
 since you and I had a deal for my wool, which was for you 
 to have taken all away in twenty-one dnjs from the time 
 you bought it. I do not consider it business to put it off 
 like this ; therefore I shall consider the deal off, as you have 
 not completed your part of the contract." The next day 
 B. orally refused to deliver the wool to A. A. asked for a 
 copy of the contract, and B. wrote to A. inclosing a copy 
 of the paper written by A. : "I beg to inclose copy of your 
 letter of January 11th." The court held that A.'s two let- 
 ters, and the paper referred to in the second, formed to- 
 gether a sufficient memorandum under the statute of frauds. 
 
 § 433. The memorandum is not sufficient if it is merely 
 a scintilla of circumstantial evidence tending to show the 
 essentials of the contract. 
 
 UO Conn., 522; Reed v. Latham, 2L. R., 7 Ex., 1. See, also, Wil- 
 40 id., 455. kinson v. Evans, L. R., 1 C. P., 
 
 407; 35 L. J. C. P., 324. 
 
CHAP. XX.] MEMORANDUM OK NOTE IN WHITING. 349 
 
 Thus, in Brown v. Whipple, 1 the following correspondence 
 was held to be insufficient to bind the defendant. This was 
 the defendant's letter: " Lancaster, December 21, 1S67. J. 
 B.Brown, Esq., Dear Sir: Can you get twenty thousand 
 feet of maple, the best quality, this coming winter, saw it 
 in the spring (or winter), and deliver it at the depot at your 
 place in July next ? If so, for how much per thousand ? 
 Please call at my place when you are at Lancaster, and we 
 will talk it over, or write me all the particulars. Respect_ 
 fully yours, J. M. "Whipple." The defendant's memoran. 
 dum: " Bock maple, clear, for J. M. Whipple, fifteen 
 thousand feet; ten thousand feet, two inches thick; five 
 thousand feet, one and one-quarter inches thick. To be 
 delivered at the railroad track. Price, $20 per thousand." 
 The plaintiff's letter : " May, 1868. John M. Whipple : The 
 maple lumber which I agreed to get out for you is ready 
 for deliver}'-. Would like to have you call up and take the 
 account of it, as I wish to draw it over to the railroad 
 track. James B. Brown." 
 
 The court laid down the following rule : that " when one 
 document refers to another, the latter is, for the purpose of 
 such reference, incorporated with the former." 2 If the 
 court, in construing the whole of them together, find that 
 they contain all the terms of the bargain, they will be suf- 
 ficient. But parol evidence cannot be introduced to connect 
 them so as to satisfy the statute of frauds. 
 
 § 434. The action of Jenness v. Mount Hope Iron Co. 3 
 was in assumpsit for an alleged breach of contract. 
 
 It came before the court on a report, and the case was to 
 stand for trial if the evidence of the plaintiff was sufficient, 
 prima facie, to entitle him to damages. 
 
 The alleged contract was in regard to a large quantity 
 of nails in kegs. The defendants admitted the negotiation, 
 
 158 N. H., 229; 19 Alb. Law N. H. , 73, 83 ; Church v. Brown, 21 
 
 Jour., 381. N. Y., 315. 
 
 21 Starkie's Ev., 359, p. 580 of 353 Me., 20. See, also, McCaul 
 
 4th Eng. ed.; Simons v. Steele, 36 v. Strauss, 1 C. & E., 106. 
 
350 SALES. [chap. XX 
 
 but denied that it ever ripened* into a contract by which 
 they were bound. The case rested upon several letters 
 which passed between them, which, stripped of immaterial 
 parts; amounted to the following : 
 
 Plaintiff. (Oct. 20, 1862.) " What will you sell me four 
 hundred and fifty kegs of nails for, delivered at Bangor, in 
 the course of a month, cash down?" 
 
 Defendants. (Oct. 23, 1862.) "We will sell you four 
 hundred and fifty casks common assorted nails, delivered on 
 the dock at Bangor, at $3.62 per keg of one hundred pounds 
 each, cash." 
 
 Plaintiff. (Oct. 27, 1862.) "Nails have advanced so 
 much I am almost afraid to buy ; but you will send me as 
 soon as possible three hundred and three kegs of (naming 
 the kinds), and I will send you a check on Exchange Bank, 
 Boston." 
 
 Plaintiff. (Nov. 11, 1862.) "Not having heard whether 
 you have shipped the nails ordered, I thought I would write 
 you, as we shall have but a few weeks more of naviga- 
 tion." 
 
 Defendants. (Nov. 14, 1862.) " It will not be possible 
 for us to get out the nails you have ordered this month, as 
 previous orders must take precedence. It is next to impos- 
 sible for us to get out nails enough to supply our back or- 
 ders, and we thought it best to write you, as navigation 
 may be closed too soon for us to forward them this fall. 
 We will, however, do our best to satisfy all our customers, 
 and your order shall receive attention when we get to it." 
 The court, Walton, J., in passing upon this correspond- 
 ence, says: " We look in vain to find in it evidence of a con- 
 tract completed." ..." We look in vain for a dis- 
 tinct proposition by either party, which is accepted Avithout 
 modification by the other." 
 
 The learned justice states the requisites of a valid con- 
 tract succinctly as follows: " To constitute a contract, there 
 • must be a proposition by one party, accepted by the other, 
 without any modification whatever. If the acceptance 
 
CHAP. XX.J MEMORANDUM OB NOTE IN WRITING. 351 
 
 modifies the proposition in any particular, however trifling, 
 it amounts to no more than a counter-proposition; it is not 
 in law an acceptance which will complete the contract." 
 
 And he decided that the letters between the plaintiff and 
 the defendants failed to establish a prima facie case for the 
 plaintiff. 
 
 All the judges concurred. 
 
 § 435. It seems to be settled by a long line of decisions 
 that the subscription to the memorandum by the agent is 
 a compliance with the statute, although the name of his 
 principal do not appear upon it. 
 
 In such case the object of the statute is as fully satisfied 
 as if it had been subscribed by or in the name of the prin- 
 cipal. 
 
 Nor does the statute exclude parol evidence to show that 
 a written contract for the sale of goods, purporting to be 
 made between A. as seller, and B. as buyer, was»in fact, on 
 his part, made by him only as the agent of O., 1 but the 
 a^ent himself may be charged at the election of the oppo- 
 site party, where he contracts in his own name without dis- 
 closing his principal. In all cases, however, where the 
 principal has reaped the benefit of the agent's acts he is 
 liable. 
 
 § 436. But in Fenly v. Stewart, 2 where it was sought to 
 hold the defendant as principal upon this memorandum : 
 " For a valuable consideration to us in hand paid, we have 
 sold A. M. Fenley two thousand five hundred bushels of 
 canal oats, at forty-five cents per bushel of thirty-two 
 
 i Dykers v. Townsend, 24 N. Y., ing the contract and bound by it. 
 
 57 (1861). So a broker's clerk may Whether he does so in his own 
 
 sign a memorandum for the broker, name or in that of another, or in a 
 
 Williams v. Woods, 16 Md., 220; feigned name; and whether the 
 
 Whitridge v. Parkhurst 20 id. 62 ; contract be signed by his own hand 
 
 Wilson v. Hunter, 7 Taunt., 295; or that of an agent, are inquiries 
 
 Cox v. Painter, 6 Adol. & Ell., 491. not different in their nature from 
 
 In Truemanu Loder, 11 id., 589, the question, who is the person 
 
 Lord Denman said parol evidence that ordered goods in a shop, 
 
 is always necessary to show that Higgins v. Senior, 8 M. & W., 834. 
 
 the party sued is the person mak- 2 5 Sandf. Super. 0. R., 101. 
 
352 SALES. [chap. XX. 
 
 quarts, to be delivered in this city at any time at our option 
 between the 1st and 15th of June next, to be cash on deliv- 
 ery. New York, April 23, 1847. A. W, Otis & Co.;" 
 and the objection was taken by the defendant that the 
 memorandum was signed by the Messrs. Otis, in their own 
 names, without any intimation, on its face, that they acted 
 as agents of the defendants ; and that they held themselves 
 out as principals. The court said that it would be in contra- 
 vention of the statute of frauds to allow the plaintiff, by 
 parol evidence, to show that the defendant was in fact the 
 principal. 1 That the Messrs. Otis were alone liable. That 
 to allow evidence to be given that the party who appears 
 on the face of the instrument to be personally a contracting 
 party is not such, would be to allow parol evidence to con- 
 tradict the written memorandum, which cannot be done. 
 
 Mason, J., further says : But where the contract of sale 
 has been executed, so that an action may be maintained for 
 the price of the goods, irrespective of the writing, there the 
 party who has had the benefit of the sale may be held lia- 
 ble, unless the vendor, knowing who the principal is, has 
 elected to consider the agent his debtor. 2 'The judgment 
 entered pro forma for the plaintiff was reversed on appeal. 
 
 § 437. "Whether a paper writing in a certain form is a 
 mere offer, or is a memorandum in compliance with the 
 statute of frauds, was passed upon in Wemple v. Knopf. 3 
 
 The paper read as follows: 
 
 "Mr. 0. F. Beand, of the North-Western Faribault 
 Nursery : 
 
 " Please send me the following bill of nursery stock, to 
 be delivered at Faribault, Bice county, Minn., during the 
 months of October and November next. I agree to pay 
 cash for all stock delivered at the price below mentioned, 
 and should I fail to pay for the same when delivered, in- 
 
 iNoakes v. Morey, 30 Ind., 103; 1 Paine, C. C. iR., 252; Thompson 
 
 Brown v. Sanborn, 21 Minn,, 402. v. Davenport, 9 B. & C, 78; New- 
 
 2 The above distinction is recog- comb v. Clark, 1 Denio, 226. 
 nized in United States v. Parmlee, 3 15 Minn., 440. 
 
CHAP. XX.] MEMOEANDUM OK NOTE IN WEITING. 353 
 
 terest shall accrue thereon from the date of delivery until 
 fully paid, at the rate of twelve per cent. (Here follows a 
 schedule of the stock referred to in the order, and the 
 prices, amounting to $68.) 
 
 (Signed) " G. "W. "Wemple, Agent, 
 
 " Adam Knopf, Je., 
 
 " Wheeling, Rice Co., Minn., June 3, 1869." 
 
 Wemple was Brand's agent, and took the order as such 
 agent. 
 
 The goods were delivered at Faribault, in October, 1869, 
 and the defendant notified of the fact, but he refused pay- 
 ment. 
 
 Before the commencement of this action, Brand assigned 
 the claim to the plaintiff. 
 
 ]STo part of the goods had been accepted by the defend- 
 ant. Upon this being shown in the trial court, the defend- 
 ant moved to dismiss the action, on the ground that the 
 sale was void, which motion was denied. Judgment was 
 for the plaintiff. 
 
 The court, Berry, J., said : " There was an agreement 
 signed by the party sought to be charged therewith in this 
 action - As we have already held in Morin v. Martz, 1 this 
 satisfies the statute. The order in this case is not a mere 
 offer, as in Lauz v. McLaughlin, 2 but it contains a positive 
 and express agreement to pay a named sum for the goods 
 ordered." 
 
 The judgment was affirmed. 
 
 § 438. In Banks v. Harris Manufacturing Company 3 it 
 appears that the defendants' traveling agent wrote to the 
 defendants : " Send to 0. W. S. Banks ; terms net thirty 
 days; freight allowed," signed by him as agent. Then fol- 
 
 113 Minn. E., 191. SeeChittyon eralEep., 667: Vt.Cir. Ct. D. (1884); 
 Cont., 404-5; Pym v. Campbell, 6 Wheeler, J., 48 Am. R, 110; Will- 
 Ell. & Bl., 370. iams v. Bacon, 2 Gray, 387; Web- 
 
 2 14 Minn., R. 75; Wallis v. Lit- ster v. Zielly, 52 Barb., 482; Bird 
 tell, 11 C. B. (N. S.), 370. v. Monroe, 66 Me., 337. 
 
 3 22 Blatch. C. C, 103; 20 Fed- 
 
 23 
 
354 SALES. [chap. XX. 
 
 lowed a list of the goods desired, with the prices and direc- 
 tions for shipment, which was signed by the plaintiff. 
 
 This paper upon its face was merely an order. 
 
 While the writings taken together, substantially said the 
 court, Wheeler, J., sufficiently set forth the terms of the 
 sale, if they show a sale, and the name of the agent is suf- 
 ficiently signed to the memorandum, if it is a memorandum 
 of a bargain of sale, and he had authority to bind the de- 
 fendant to such contract, yet it clearly appears to be of an 
 order and not of a sale, within the meaning of the statute of 
 frauds. As shown by itself it fails to constitute a sale with- 
 out an acceptance of the order. 
 
 In all such cases it is decided that a contract of sale must 
 be gatherable from the memorandum as against the parties 
 sought to be charged. 
 
 § 439. The action of McDonald v. Berwick ' was brought 
 upon the following paper writing: " Alpena, Mich., Decem- 
 ber 5, 1879. We agree to sell Malcolm McDonald one mill- 
 ion feet of Norway, in town 28 north, 8 east, on our lands 
 along Alger railroad ; said Norway to be suitable for mak- 
 ing square timber; and will make a contract with him, giv- 
 ing him the right to go on said lands and cut and remove 
 said timber on payment for the same. The price of said 
 Norway to be $1.50 per thousand, board measure, and 
 said timber to be selected Norway. We do not guarantee 
 any certain amount of timber on said lands that McDonald 
 will take, but do say that there is one million feet of good 
 Norway and more. Berwick, Comstock & Co." The court 
 held that this was not a contract, but " simply an offer to 
 make one," with a statement of terms ; that there was no 
 mutuality, and therefore the plaintiff could not recover. 
 
 § 440. The case of Justice v. Lang 2 is interesting, and is 
 
 1 51 Mich. R., 79; Governor, etc., 300; Story on Sales, §§ 124, 126; 1 
 
 v. Patch, 28 Eng. Law & Eq., 470; Parsons on Contr. (5th ed.), 475; 
 
 Lees v. Whitcomb, 5 Bing., 34; Dilton v. Anderson, 43 N. Y., 
 
 James v. Williams, 5 Barn. & Ad., 232. 
 
 1109; Quick v. Wheeler, 78 N. Y., 242 N. Y., 493. 
 
CHAP. XX. J MEMORANDUM OK NOTE IN WRITING. 355 
 
 one of the leading cases upon the particular subject under 
 review. 
 
 The action was brought to recover damages for the non- 
 delivery of certain rifles, upon the following memorandum : 
 
 " New York, 13th May, 1861. 
 
 " We agree to deliver to P. S. Justice one thousand En- 
 field pattern rifles, with bayonets, no other extras, in New 
 York at §18 each, cash upon such delivery ; said rifles to be 
 shipped from Liverpool not later than 1st July, and before 
 if possible. W. Bailey Lang & Co." 
 
 This appeal (the first appeal of the case to the court of 
 appeals) was from a judgment entered upon the decision of 
 the general term of the superior court of the city of New 
 York, affirming a judgment dismissing the complaint upon 
 the trial of the issues before the court below, and a jury. 
 
 The appeal was twice argued. 
 
 In an opinion covering over thirty pages, Lott, J., reviews 
 the law on the subject of contracts generally, and as gov- 
 erned by the statute of frauds, and reaches the following 
 conclusions: First, that a note or memorandum subscribed 
 by the parties to be charged satisfies the statute of frauds ; 1 
 second, that the fact that the party who does not sign it 
 may not be liable thereon does not destroy the considera- 
 tion which forms the inducement of the other party to make 
 it obligatory by himself by complying with all the require- 
 ments of the law to make it so ; and third, that the agree- 
 ment of the defendants was a completed contract for the sale 
 and delivery of the rifles at the price and upon the terms 
 stated in the memorandum of the defendants, and supported 
 by a sufficient consideration. The judgment of the court 
 below was reversed and a new trial ordered. All concurred 
 for reversal except Ingalls, J. 
 
 Judge Ingalls (dissenting), in a concise and well consid- 
 
 iSee, also, "West v. Newton, 1 ions recognized by Chancellor 
 
 Duer, 277; Woodward v. Harris, Kent in Clason v. Bailey, 14 
 
 3 Sandf. Sup. Ct. Rep., 272. These Johns., 484. 
 cases are in accord with the decis- 
 
356 SALES. [CHAP. XX. 
 
 ered opinion, contended that it was not the intention of the 
 legislature, in adopting the statute of frauds, to dispense 
 with the necessity of having a consideration to support an 
 agreement, but to require such note or memorandum in ad- 
 dition to such consideration. He further substantially held 
 that if there had been even a slight consideration for the 
 defendants' promise, and if the instrument in question had 
 been subscribed by the plaintiff, and had contained a prom- 
 ise on his part to receive the rifles and pay for them, there 
 would have been a good consideration for the defendants' 
 promise. 
 
 He did not think that an executory contract, subscribed 
 by one party, could be enforced without a consideration to 
 support it, and therefore thought the agreement was void. 1 
 
 § 441. In the second appeal, in Justice v. Lang, Mr. 
 Judge Allen delivered the opinion of the court. The ap- 
 peal was from the judgment of the general term of the 
 superior court, affirming a judgment in favor of the plaint- 
 iff, entered upon a verdict. He adverts to the opinion of 
 Mr. Justice Lott, and says the case presented a grave ques- 
 tion; and without more consideration than he had given it, 
 he would have hesitated before assenting to the conclusions 
 of the learned judge, that a promise void in law, made by 
 one party, was a good consideration for a promise by the 
 other. 
 
 In the court below, on the second trial, the questions sub- 
 mitted to the jury were two, and those related to damages. 
 The trial judge ruled that the plaintiff was entitled to re- 
 cover, and " would allow but those two questions to go to 
 the jury." The recovery rested upon the written promise 
 of the defendants, and the verbal promise of the plaintiff, 
 simultaneous with the written promise. The court says: 
 There was no express agreement on the part of the plaint- 
 iff, that is, he did not then and there say, in totidem verbis, 
 
 iSee Cumminga v. Dennett, 26 South. (N. J.), 570, 573; Smith v. 
 Me., 397; Nichols v. Allen, S3 Ide, 3 Vt., 290. 
 Minn., 542; Buckley v. Beardsle, 2 
 
CHAP. XX.] MEMORANDUM OB NOTE IN WRITING. 357 
 
 that he would purchase and pay for the rifles. The plaint- 
 iff does not say, " that contract was accepted by me," and 
 it is impossible that he intended to say that he accepted it 
 at the time. The language is equivocal. What was in- 
 tended by this equivocal expression was a question of fact. 
 
 After reviewing the evidence, and stating the rule as to 
 the presumptions of fact and law, 1 the learned judge says: 
 The undertaking of the defendants is, in form as well as in 
 execution, unilateral. The act of the plaintiff in putting 
 the memorandum in his pocket and walking off has no par- 
 ticular legal significance, and no inference can be drawn 
 from it as a legal presumption. 
 
 The facts as presented in the case show that it was quite 
 uncertain whether the memorandum was delivered abso- 
 lutely, or in expectancy that a written order would be given 
 by the plaintiff in form to make it a valid contract. 
 
 It cannot be presumed as matter of law that the defend- 
 ants intended to accept from the plaintiff anything less than 
 a promise valid in law, or that there was, in fact, a parol un- 
 dertaking by the plaintiff; and if such an inference is to be 
 drawn, it must be done by the juiy as a presumption of 
 fact, and not by the court as a presumption of law. The 
 transaction must be spelled out from the facts proved. 
 
 As the principal fact was not proved, and as the circum- 
 stances are only evidence more or less cogent on the main 
 fact, the reasonable inference deducible from them should 
 have been passed upon by the jury. 
 
 § 442. Although there were other questions involved, the 
 court held that the views above expressed lead to a reversal 
 of the judgment. A new trial was granted. 
 
 On the third appeal to the court of appeals, 2 it was unani- 
 mously decided that the findings of the referee upon the 
 trial, as a question of fact, that the memorandum sued upon 
 
 'Broom's Leg. Max., 105; Best 2j us ti C eu. Lang, 63 N. Y., 633; 
 
 on Presumptions, 18; 1 Greenl. aff'g 39 Super. Ct. R., 283; Palmer 
 
 Ev., 48; Foster v. Steele, 3 Bing. v. Marquette & P. R. Mill Co., 32 
 
 N. C, 892. Mich., 274. 
 
358 SALES. [chap. XX. 
 
 was not delivered absolutely as a valid agreement, but con- 
 ditionally, and that the plaintiff did not perform the con- 
 ditions, was properly disposed of and was conclusive. 
 
 § 443. In May v. "Ward x the plaintiffs, in Boston, were 
 dealers in sheet-iron ; the defendant was a manufacturer of 
 similar iron in Ohio. The action was brought upon the fol- 
 lowing memorandum: "I hereby agree to ship you balance 
 of twelve cars sheet-iron which we owe you on a previous 
 arrangement, same to be agreed upon at prices and terms as 
 below, and specification not to exceed one car of heavy 
 sizes heavier than twenty-one gauge and not more than one 
 car of thirty gauge. Balance of specification to be JSTo. 21 
 to !N"o. 26 gauge ; all specifications to be sent us at rate of 
 one car-load per month." Then followed a list of prices 
 for the different sizes per one hundred pounds, and the 
 terms of payment. The plaintiffs' testimony tended to show 
 that certain conversations which were had with the defend- 
 ant at the time related to six cars, but the judge ruled that 
 parol proof was not competent to show that fact. The con- 
 tract, says the court, did not require the defendant to fur- 
 nish " twelve " or any other definite number of cars of iron, 
 and directed a verdict for the defendant. C. Alien, J., 
 after stating that this was a contract for the sale of goods, 
 not for labor and materials, said : Oral testimony is not 
 competent to show how many cars were meant; that the 
 essential terms must be contained in or ascertainable from 
 the writing itself. 
 
 The memorandum was incomplete and uncertain. The 
 words " same to be agreed upon '' show that one element 
 was to be agreed upon in the future. " The plaintiffs con- 
 tend that the writing shows that at least two car-loads were 
 to be shipped, and that the action may be maintained to re. 
 cover for the failure to deliver at least that quantity. But 
 the promise specified is to ship a balance 'to be agreed 
 upon,' and is limited to such balance, and is not enlarged by 
 
 1134 Mass. R., 127, decided January 6, 1883; Brown v. Whipple, 58 
 N. H., 229. 
 
CHAP. XX.] MEMORANDUM OR NOTE IN WRITING. 359 
 
 the following stipulations, which are provisional and de* 
 pendent upon a previous determination by agreement. Till 
 such determination, there is no agreement. The construc- 
 tion of the contract in this respect is the same as if the 
 words were, ' the same to be determined by the award of 
 A. B.,' in which case, until such award, the contract would 
 not take effect." Accordingly, the judgment of the court 
 below was affirmed. 
 
 The above opinion, though citing no authority, is concise 
 and clear, like some of the early English decisions, and is 
 sound law. The iron contemplated by the contract was not 
 to be specially manufactured for the plaintiffs, but was such 
 as was sold by the defendants in the usual course of their 
 business; so that, under the Massachusetts doctrine, the 
 contract was one of sale, and not for labor and materials. 
 The memorandum did not contain the essential elements 
 required under the statute, and was, therefore, void. The 
 quantity of iron was not mentioned, and would have to be 
 ascertained by some further agreement between the parties, 
 and parol evidence is not admissible to supply such a 
 defect. 1 
 
 § 444. In Ashcroft v. Butterworth 2 the plaintiff by let- 
 ter asked the defendants, "At what price will yon fill my 
 orders for gauge glasses ? " The defendants replied : " "We 
 will supply you with gauge glasses at the same rates we 
 supply the Ashcroft Manufacturing Company." The plaint- 
 iffs wrote August 27, " Our understanding with the com- 
 pany is bill at sight immediately on receipt of goods, and 
 we hope you will comply with the same conditions," etc. 
 " We have put you exactly on the same terms as the com- 
 
 iSee Ridgway v. Bowman, 7 Pitcher v. Hennessy, 48 N. Y., 415; 
 
 Cush. E, 268; Stoops v. Smith, 100 Hakes v. Hotchkiss, 23 Vt., 281; 
 
 Mass,, 63; Tayloe v. Eiggs, 1 Peters Groot v. Story, 44 id., 200; Eden v. 
 
 (U. S.), 591 ; Henderson v. Cotter, 15 Blake, 13 M. & W., 614, etc. 
 
 U. C. Q.B., 345; Mason v. Bruns- 2 136 Mass., 511, February, 1884; 
 
 kill, 15 id., 300; 1 Chitty on Cont. Atwell v. Miller, 6 Md., 10. 
 (11th Am. ed.), 153, and note (it); 
 
360 SALES. [chap. XX. 
 
 pany," etc., which letter also gave " the present price 8£ d. 
 per lb." 
 
 The defendants filled four orders of the plaintiff, for 
 which the plaintiff paid by drafts dated from seventeen to 
 twenty-three days respectively after the receipt of the goods. 
 Then followed some correspondence as to the responsibility 
 of the plaintiff, wherein the defendants wrote to the plaint- 
 iff: "If you can give us good reference or security your 
 orders will be executed," etc. The plaintiff not furnishing 
 such reference or security, the defendants refused to fill the 
 orders. The question was whether they were liable for not 
 filing the orders. 
 
 The court held that, as the plaintiff broke the contract, 
 if one was made, and the defendants never having waived 
 the breach, the plaintiff could not insist upon its further 
 performance. 1 
 
 Field, J., said: "We are of opinion that no agreement 
 is shown on the part of the defendants to send the plaintiff 
 any gauge glasses that he might order, which became a com- 
 plete contract by the plaintiff's sending an order. The 
 whole effect of the correspondence, after the letter of 
 August 27, is, that the defendants are willing to sell the 
 plaintiff gauge glasses at the same rate and on the same 
 terms as they sell the Ashcroft Manufacturing Company." 
 
 The statute of frauds had been pleaded. 
 
 It was decided that the ruling of the court below could 
 not be sustained. Judgment for the defendant. 2 
 
 § 445. Millar v. Fitzgibbons 3 was an action for damages 
 • for the non-delivery of certain paper, in pursuance of the 
 following order which the plaintiffs gave to a salesman of 
 the defendants: 
 
 " New York, 4—8, 1880. 
 
 " Messes. Fitzgibbons, Messer & Co. : Please furnish us 
 
 1 Withers v. Reynolds, 2 B. & Mass., 204; Oakman v. Rogers, 120 
 Ad., 882. id., 214. 
 
 2 See Whelan v. Sullivan, 102 3 9 Daly, 505, decided February, 
 
 1881. 
 
CHAP. XX. J MEMORANDUM OE NOTE IN WRITING. 361 
 
 1,000 reams 36x40—40 lbs. to the ream A $290 per 100 lbs., 
 less 5 %, to be delivered in the month of April. 
 
 " Tours, etc., George "W. Millar & Co." 
 
 There was no written acceptance of the order by the de- 
 fendants, and no money paid by the plaintiffs on account of 
 it. The conclusion that this appeared to be a contract 
 within the operation of the statute of frauds was sought to 
 be overthrown by the plaintiffs by showing that the parties 
 contemplated the manufacture of the paper, and so should 
 be regarded as a contract for labor and materials, and not 
 within the statute; but judgment was rendered for the 
 plaintiffs. 
 
 The court of common pleas reversed the judgment. 
 
 Van Brunt, J., said : " It is admitted upon the part of the 
 appellants that if any order of this kind is given to a manu- 
 facturer to manufacture the articles mentioned in an order, 
 it is not within the statute ; but it is claimed by them that 
 where a vendor is not a manufacturer then such a contract 
 is within the statute of frauds. I have been unable to find 
 in the decisions of this state any case bearing directly upon 
 this point, but an examination of the authorities leads me 
 to the conclusion that the distinction is undoubtedly well 
 taken." 
 
 The court referred to the case of The Passaic Manufact- 
 uring Co. v. Hoffman, 1 where the leading authorities are re- 
 viewed, and it was decided that the distinction is recognized 
 in the principle upon which it is held, that " contracts to 
 manufacture are not within the statute of frauds, because 
 they are, as those cases hold, contracts for the labor, skill, 
 care or knowledge of the manufacturer who contracts to 
 manufacture the article." It was necessary for the plaint- 
 iffs to have gone further than they did, and actually have 
 shown that the defendants were to manufacture the paper 
 in order to take it out of the statute. 
 
 This decision seems to be consistent with the cases in New 
 
 13 Daly, 495. 
 
362 SALES. [CHAP. XX. 
 
 York and some of the other states. ■ In Massachusetts, how- 
 ever, a different rule obtains. 
 
 § 446. A distinction has sometimes been drawn between 
 proof of a contract, and proof of a compliance with the 
 statute of frauds. 1 The question of compliance does not 
 arise until the memorandum is put in evidence. In written 
 contracts as such, the statute has no application. 
 
 A compliance with the statute of frauds may be proved 
 either by earnest given, part payment, acceptance and re- 
 ceipt, or by a note or memorandum in writing subscribed 
 by the parties to be charged. "Where a memorandum is 
 to be proved in accordance with the statute, it differs from 
 a contract in writing, in this, that the memorandum may 
 be shown to have been made at any time after the bargain, 
 but before the action is commenced; and any number of 
 writings may be made, all being equally originals and be- 
 ing connected physically or by reference to each other. 
 
 As already stated, a memorandum satisfies the statute of 
 frauds if it is subscribed by the party to be charged, or by 
 his authorized agent, and the terms of the contract can 
 be gathered from the writings when taken together. 2 
 
 § 447. In Egerton v. Matthews 3 the memorandum read 
 as follows : " "We agree to give Mr. Egerton 19c?. per pound 
 for thirty bales of Smyrna cotton, customary allowance, 
 cash 3 per cent, as soon as our certificate is complete. 
 (Signed) Matthews & Turnbull, and dated 20th of Septem- 
 ber, 1803." 
 
 Lord Ellenborough, C. J., decided that this was a requi- 
 site memorandum of the bargain; or at least of so much 
 of it as was sufficient to bind the parties to be charged 
 therewith, and whose signatures to it is all that the statute 
 
 1 Coddington v. Goddard, 16 C. P., 208; Croppe v. Cook, L. E., 3 
 
 Gray, 436 ; Sievwright v. Archibald, C. P. , 194. 
 
 17 Q. B., 115; 20 L. J. Q. B., 529; 2 TaUman v _ Franklin, 14 N. Y., 
 Jeffcott v. North Br. Oil Co., Ir. 584, 588, rev'g 3 Duer, 395 ; Grafton 
 E., 8 C. L., 17; Hey worth v. v. Cummings, 99 U. S.. 19; Beck- 
 Knight, 17 C. B. N. S., 298; 33 L. with v. Talbot, 95 U. S., 289. 
 
 3 6 East, 307. 
 
CHAP. XX.] MEMORANDUM OE NOTE IN WRITING. 363 
 
 requires; , even though the consideration be not expressed 
 in the memorandum. It adequately protected the party to 
 be charged, and thus carried out the intention of the stat- 
 ute of frauds. 
 
 And in the well considered case of Allen v. Bennett, 1 it 
 was held that the statute is satisfied if the memorandum 
 be signed by the defendant, the vendor, although it be not 
 signed by the vendee, and notwithstanding it could not 
 have been enforced against the latter. 
 
 § 448. In Lee v. Hillis 2 an action was brought upon an 
 open account in the following form: "Terre Haute, Ind., 
 187- A. P. Lee & Bro. (Then follows a list of the goods.) 
 " Freight, ship Emp. line, sixty days' acceptance." Signed 
 "Hills Bros., per E. F. Lock, April 21, 1875." The appel- 
 lants' answer averred a purchase of certain goods of the 
 appellees, through their agent, on a credit of sixty days. 
 Bjr mistake, the word sold was omitted from before the 
 firm name of the appellants, and in the answer they prayed 
 for a reformation of the memorandum in this respect, ask- 
 ing a set-off in damages for appellants' failure to ship the 
 goods. A demurrer to the answer was sustained on the 
 ground that a memorandum, to be sufficient within the 
 statute of frauds, must state the contract with such reason- 
 able certainty that its terms may be understood from the 
 writing itself without recourse to parol proof. 
 
 § 449. In the case of Ashcroft v. Morrin 3 (which was 
 tried at common pleas, Trinity term, in 1842), it appeared 
 that on April 3d the defendants sent a letter from St. Vin- 
 cent's to the plaintiffs in London, signed "J. & S. Morrin," 
 as follows: "We dispose of a good deal of small liquor in 
 our line, and Captain Nelson, of the Emerald, has recom- 
 
 ] 3 Taunt., 169; Johnson v. Dod- Norris v. Blair, 39 id., 90; Burke v. 
 
 son, 2M. & W., 653; Douglass v. Haley, 2 Gilman, 614; 1 Greenl. 
 
 Spears, 2 N. & McCord, 207; E v., § 267; Browne on the Stat, of 
 
 Champion v. Plummer, 4 Bos. & Fr., § 382; 2 Kent's Com., 511. 
 
 Pul., 252. 3 N. Y. Legal Obs., vol. 1, p. 238. 
 
 ^66 Ind. E., 474, October, 1879 ; See, also, Hanson v. Armitage, 5 B. 
 
 Kidgway v. Ingram, 50 Ind., 145; & Aid., 557. 
 
364 bales, [chap. XX. 
 
 mended us to try your house for these goods. We annex 
 an order, which please to send by the Emerald. Let the 
 quality be first and good and the terms moderate. We will 
 either pay Captain Nelson or remit you bills for the 
 amount." Then followed a list of the goods: "Porter, 
 four hogsheads ; brown stout, four hogsheads, not weakest, 
 but of good body," etc. 
 
 The goods were shipped on board the Emerald, which 
 vessel and cargo were lost on the voyage out. 
 
 The defendants refused to pay, and the plaintiffs brought 
 this action to recover the value of the goods so shipped. 
 The cause was tried at the sittings in London, before Ores- 
 well, J. 
 
 The defendants contended that there was not a sufficient 
 contract to satisfy the statute of frauds; nor, in the ab- 
 sence of such legal contract, was there a sufficient accept- 
 ance by the purchasers, through delivery on board the 
 Emerald, to raise a cause of action. 
 
 The appellate court, Tindal, C. J., decided that the words, 
 of the order being that the price should be moderate, no 
 specific price being provided for, " the price could easily be 
 ascertained," and makes the case entirely conformable with 
 the provisions of the statute in that respect. The rule was 
 made absolute. 
 
 As the goods were shipped by the Emerald, as directed 
 by the order, there was, in contemplation of law, an accept- 
 ance and receipt; it was a valid contract. 
 
 §450. In Ormand v. Anderson ' the learned judge ad- 
 verted to the doubt expressed in Lawrence v. Butler, 2 
 whether courts of equity would specifically execute an 
 agreement where one party only was bound ; and he said 
 that there existed no provisions in the statute to prevent 
 the execution of such an agreement. He cited with ap- 
 proval the opinion of Mansfield, C. J., in Allen v. Bennett. 4 
 
 The chief justice, in that case, observes that the cases of 
 
 » 2 Ball & Beatty, 370. s 3 Taunt., 169. 
 
 21Sch. &Lef„ 13. 
 
CHAP. XX.] MEMORANDUM OR NOTE IN WRITING. 365 
 
 Egerton v. Matthews, 1 Saunderson v. Jackson, 3 and Cham- 
 pion v. Plumraer, 3 hold the signature of the seller to be suf- 
 ficient. He says it is the " daily practice of the court of 
 chancery to establish contracts signed by one person only, 
 and yet a court of equity can no more dispense with the 
 statute of frauds than a court of law can." And Lawrence, 
 J., in the same case, remarked that the statute clearly sup- 
 poses the probability of there being a signature by one per- 
 son only. 4 The same construction passi?n has been adhered 
 to in respect to contracts for the sale of lands. 
 
 § 451. A subsequent modification of a contract in writ- 
 ing falls within the operation of the statute of frauds. 
 
 The principle of the common law, that it is competent 
 to the parties at any time after a contract (not under 
 seal) has been reduced to writing and signed to make a 
 fresh parol contract, either to waive the written bargain 
 altogether, to dissolve and annul it, or to subtract from it, 
 vary, or qualify its terms, and thus to make a new contract, 
 to be proven partly by the written contract and partly by 
 the subsequent verbal terms engrafted upon what is left of 
 the written contract, is not applicable to contracts of sale 
 of goods under the statute of frauds. Thus, in substance, 
 says Mr. Benjamin. 5 
 
 And to the same purport says Kelly, 0. B., in Tyers v. 
 Kosedale & Ferryhill Iron Company. 6 " It is now estab- 
 lished," he said, " that a new verbal contract cannot be sub- 
 stituted for the original contract, where, by the statute of 
 frauds, such original contract must be in writing." 
 
 Nor can a sale of goods under a written contract be en- 
 larged by a subsequent parol agreement by additional 
 goods. 7 Nor parol evidence be admitted to change the 
 place or time of delivery fixed in the writing ; nor a change 
 in any of the terms by any modification. 8 
 
 1 6 East, 307. 5 Benj. on Sales, § 216. 
 
 22 B. & P., 238. «L. R., 8 Ex., 315. 
 
 3 1 B. & P. -N. R., 252. TSchultz v. Bradley, 57 N. Y., 646. 
 
 ^Welfordv. Beazley, 3Atk.,503; 8 Stevens v. Hall, 9 Cush., 81; 
 
 Coltonv. Lee, 2 Bra, 564; 18Vesey, Ogden v. Stewart, 60 N. Y., 419; 
 
 183. Cummings v. Arnold, 3 Met., 486. 
 
CHAPTEE XXI. 
 
 OF THE MEMORANDUM OR NOTE — CONTRACTS BY TELE- 
 GRAPH. 
 
 § 452. Contracts by telegraph are within the statute of frauds. 
 
 453. The statute of several states on the subject. 
 
 454. Essentials of contracts by telegraph ; construed as letters. 
 
 455. The same subject ; Hallock v. Commercial Insurance Company. 
 
 456. Example of insufficiency of telegrams to constitute a contract. 
 
 457. Another similar example ; "Watt v. Wisconsin Cranberry Com- 
 
 pany ; extrinsic evidence not admissible. 
 
 458. The same subject; Whaley v. Hinchman. 
 
 459. Parol evidence admissible to explain abbreviations. 
 
 460. Example where telegrams were held sufficient to satisfy the 
 
 statute of frauds ; Trevor v. Wood. 
 
 461. The same subject continued. • 
 
 462. Example where certain telegrams were held to be insufficient; 
 
 North v. Mendel. 
 
 463. What is a sufficient signing of the telegram; an agent may 
 
 sign for his principal. 
 
 § 452. There does not seem to exist any good reason 
 why contracts by telegraph should not fall within the opera- 
 tion of the statute of frauds. 
 
 In fact the statutes of several states, in so many words, 
 provide that contracts by telegraph are deemed to be con- 
 tracts in writing. 
 
 In general the cases hold that a telegram is a written in- 
 strument, and when it embraces the essentials of a contract 
 it satisfies the statute of frauds. 
 
 The same rules of construction are applicable to tele- 
 grams as apply to communications by letter. 
 
 Although the adjudications upon this subject are some- 
 what meager, there is sufficient material for the erection of 
 a considerable judicial structure. 
 
 § 453. In regard to such contracts, the statute of In- 
 diana reads as follows : " Contracts by telegraph, between 
 
CHAP. XXI.J MEMORANDUM — CONTRACTS BY TELEGRAPH. 367 
 
 two or more persons, shall be considered as contracts in 
 writing." 1 
 
 The following is the language of the statutes of Cali- 
 fornia, 3 Nevada, 3 Oregon, 4 Utah : 5 " Contracts made by tel- 
 egraph shall be deemed to be contracts in writing; and all 
 communications sent by telegraph, and signed by the per- 
 son or persons sending the same, or by his or their author- 
 ity, shall be held and deemed to be communications in 
 writing." 
 
 § 454. The telegram, like the note or memorandum con- 
 templated by the statute of frauds, must contain the same 
 requisites ; it must be complete in itself, and leave nothing 
 to rest in parol. If, in an alleged contract of sale by 
 telegraph, the telegram fails to show what property is con- 
 tracted for; what the price to be paid for the property is; 
 and to whom it is sold, the statute of frauds will not be 
 satisfied. 
 
 Thus, it was said, in a well considered case by "Woodruff, 
 J. : " When, and to what extent, dispatches sent by parties 
 to each other are to be treated as written contracts, or 
 written evidence of their contracts, must depend upon the 
 circumstances in which they are sent, and the intent and 
 object for which they are transmitted and received." 7 
 
 In general a telegraphic message is held to be equivalent 
 to a letter. 7 
 
 § 455. It should be steadily borne in mind, that, in gen- 
 
 1 § 4180. road, 29 Vt., 127; Dunning v. Rob- 
 
 2 Statutes, ch. 262, § 11, ap- erts, 35 Barb., 463; 7 Alb. L. Jour., 
 proved April 18, 1862. 179 ; Hazard v. Day, Allen's Tele- 
 
 3 Compiled Laws, vol. 2, § 3507. graph Cases, 320; Goodwin v. 
 *Ch. 58, § 9. Francis, id., 420; Leonard v. New 
 5 Compiled Laws 1876, p. 198, York, etc., Tel. Company, 41 N. 
 
 § 11. Y., 544; Henkel v. Pape, L. R, 6 
 
 <> Beach v. The Raritan & Dela- Exch., 7. 
 
 ware Bay Eailroad Company, 37 7 Kinghorne v. Montreal Tel. Co. , 
 
 N. Y., 457; Taylor v. Steamboat 18 U. C. Q. B., 66; Cent. Law 
 
 Robert Campbell, 20 Mo., 254 ; Rom- Jour., April 22, 1881 : Dilworth v. 
 
 mel v. Wingate, 103 Mass., 327; Bostwick, 1 Sweeny, 588; Reed on 
 
 Durkee v. Vermont Central Rail- Stat, of Fr., § 339. 
 
368 SALES. [CHAP. XXI. 
 
 eral, the question whether a contract has been made by 
 telegraphic communications is to be determined by tho 
 same rules as in cases of communications by letter. 
 
 This subject is ably discussed by Yredenburgh, J., in 
 Hallock v. Commercial Insurance Company, 1 and the posi- 
 tion taken that, when an overt act is done signifying an 
 acceptance of an offer of purchase, a contract arises. 
 
 He says : " The overt act may be as various as the form 
 and nature of contracts. It may be by the fall of the 
 hammer, by words spoken, by letter, by telegraph, by re- 
 mitting the article sent for, by mutual signing, or by deliv- 
 ery of the paper, and the delivery may be by any act 
 intended to signify that the instrument shall have a present 
 vitality. 
 
 " Whatever the form, the act done is the irrevocable evi- 
 dence of the aggregatio mentium; at that instant the bargain 
 is struck. The acceptor can no more overtake and counter- 
 mand, by telegraph, his letter mailed, than he can his words 
 of acceptance after they have issued from his lips on their 
 way to the hearer. . . . There is no difference between 
 the acceptance of a proposition by word of mouth and a 
 letter stating an acceptance. In the one case it is articu- 
 late sounds carried by the air ; in the other, written signs 
 carried by the mail, or by telegraph. The vital question is, 
 was the intention manifested by any overt act, not by what 
 kind of messenger it was sent. The bargain, if ever struck 
 at all, must be eo instanti with such overt act. 
 
 " Mailing a letter containing an acceptance, or the instru- 
 ment itself intended for the other party, is certainly such 
 an act." 
 
 § 456. The recent case of Lincoln v. Erie Preserving 
 Company 2 also involved the question of a contract by tele- 
 graph. There, the plaintiff, a broker and dealer at Boston, 
 telegraphed to the defendants, a corporation at New York, 
 
 1 2 Dutcher (N. J.), 268; Smith v. 2 132 Mass., 129. 
 Eafeton, 54 Md., 147. 
 
CHAP. XXI.] MEMORANDUM CONTRACTS BY TELEGRAPH. 369 
 
 September 26, 1879, as follows: " Telegraph how much corn 
 you will sell, with lowest cash price. Buffalo." 
 
 The defendants answered the same day by telegraph: 
 " Three thousand cases, $1.05, open one week." 
 
 The plaintiff sent a telegram immediately, saying: "Sold 
 corn, will see you to-morrow." These telegrams comprised 
 all the memoranda in the case. 
 
 On the trial, for non-delivery of three thousand cases of 
 corn, the plaintiff offered to prove that he had an inter- 
 view with the defendants September 27, and they agreed 
 to ship the corn ; that the last telegram referred to a resale 
 by himself of the same corn to one Hooper. 
 
 It was held on appeal, Allen, J., that the telegrams did 
 not contain an offer by the defendants to sell to the plaint- 
 iff. The plaintiff was a broker, and had acted as a broker 
 for the defendants, and also had dealings with them on his 
 own account. 
 
 The court said : " Construing the first two telegrams to- 
 gether, the defendant says to the plaintiff that it will sell 
 a certain quantity of corn, on certain terms, and within a 
 certain time ; but it does not say that it will sell to the 
 plaintiff. It says in effect that it will hold the corn for a 
 week, for the plaintiff to find a purchaser. The plaintiff's 
 reply confirms this construction, for he does not say that 
 he will take the corn, but that he has sold it, and will see 
 the defendants the next day." l 
 
 The court decided that as there was no evidence of any 
 bargain or offer to sell the corn to the plaintiff, evidence of 
 a subsequent oral promise by the defendants, or acceptance 
 by the plaintiff, was properly excluded. 
 
 The telegrams taken together did not embody a contract 
 sufficient to satisfy the statute of frauds. 
 
 1 Smith v. Gowdy, 8 Allen, 566 ; feries, 7 Allen, 563 ; Wheat v. 
 
 Champion v. Plummer, 1 B. & P. Cross, 31 Md., 99; 1 Am. B., 28; 
 
 N. E., 252; Hazard v. Day, 14 State v. Litchfield, 58 Me., 267; 
 
 Allen, 487; Stone v. Sanborn, 104 Smith v. Easton, 54 Md., 138. 
 Mass., 319; Commonwealth v. Jef- 
 24 
 
v 370 SALES. [chap. XXI. 
 
 § 457. The case of "Watt v. "Wisconsin Cranberry Co. 1 
 is interesting. 
 
 The action was brought to recover damages for an al- 
 leged breach of contract to deliver to the plaintiff two hun- 
 dred barrels of cranberries. 
 
 The contract relied upon consisted of certain telegrams. 
 
 They read as follows : 
 
 " October 15, 1881. 
 
 " To W. E. Taylor, Madison, Wis. : This car gone to 
 Watt. Send best terms for another car-load to same par- 
 ties. W. B. Barnes." 
 
 "October 18, 1881. 
 " To W. B. Barnes, Tomah, Wis. : Will deliver to seven 
 fifty. First-rate ; better than before. Answer here at once. 
 
 "W.E.Taylor." 
 
 " October 19, 1881. 
 
 "To W. E. Taylor: Ship one car of best to Watt & 
 Co. at your price. W. B. Barnes." 
 
 The evidence tended to show that Taylor was the presi- 
 dent of the defendant company ; that Barnes was a friend 
 of Taylor and was requested by him to solicit from the 
 plaintiffs orders for cranberries; that he solicited and ob- 
 tained from them an order for a car-load, which order the 
 defendant filled ; that afterwards he solicited and obtained 
 from them another order (for the cranberries in question), 
 which was not filled; that Barnes undertook to communi- 
 cate the order to Taylor by telegraph, and sent a telegram 
 to the proper office in Wisconsin, directed to Taylor, being 
 the one above set out under date of October 19. This tele- 
 gram was never delivered to Taylor. It was also shown 
 that Taylor's telegram to Barnes under date of October 18 
 was never delivered to the plaintiffs but was merely shown 
 to them by Barnes. 
 
 No part of the purchase price was paid, and no recovery 
 
 1 63 Iowa, 730; 18 N. W. Reporter hurst v. Van Cortlandt, 1 Johns 
 (N. S.), 898 ; Greenl. Ev., 268 ; Park- Ch., 280. 
 
CHAP. XXI.] MEMORANDUM CONTRACTS BY TELEGRAPH. 371 
 
 can be had unless the alleged contract, as constituted by the 
 telegrams, is sufficient to take the case out of the statute. 
 
 Unless aided by extrinsic evidence, the alleged contract is 
 unintelligible. The subject-matter of it is not mentioned. 
 It is equally applicable to any kind of personal property 
 that might be thus shipped. The trial judge ruled that the 
 telegrams were insufficient to make a contract under the 
 statute, and the appellate court decided that the jury was 
 properly instructed to render a verdict for the defendant, 
 and affirmed the judgment. 1 
 
 § 458. Another example: In "Whaley v. Hinchman Hhe 
 plaintiff wished to purchase the premises which he was at 
 the time occupying as defendant's tenant, and sent the fol- 
 lowing telegram : 
 
 " January 20, 1884. 
 
 " To Mayor A. Hinchman, "Waco, Texas : I will take your 
 house at $3,000. Answer. C. "Whaley." 
 
 The defendant responded in the following telegram : 
 
 " Waco, Texas, 24. 
 
 " To 0. "Whaley, Pleasant Hill, Mo. : See J. B. "Williams ; 
 if not sold, you can have it. A. Hinchman." 
 
 These telegrams comprised all the memorandum or note 
 thereof in writing there was between the parties. 
 
 "While the decisions hold that a contract by telegram 
 may meet the requirement of the statute of frauds, 3 the 
 question here raised was, whether the subject-matter of the 
 contract was sufficiently ascertained in the telegrams to 
 avoid the statute. The court held it was not. 
 
 iSee Howard v. Daly, 61 N. T., v. Lindsell, 1 Barn. & Aid., 681; 
 
 366; 2 Abb. N. C, 70; Trevor v. Scott and Jarnigan on Telegraphs, 
 
 Wood, 36 N. Y... 307; Taylor v. § 304; Merrill v. "Western Union 
 
 Merchants' Ins. Company, 9 How. Telegraph Co., 78 Me., 97. 
 
 (U. S.), 390; Kinghorne v. Montreal 2 22 Mo. App. R., 483; 5 West. 
 
 Tel. Company, 18 TJ. C. Q. B., 60; Rep., 63. 
 
 McCullock v. Insurance Company, 3 Wells v. R'y Co., 30 Wis., 605; 
 
 1 Pick., 278; Gillespie v. Edmond- King v. Wood, 7 Mo., 389. But 
 
 ston, 11 Ham., 583 ; Prosser v. Hen- see Springer v. Kleinsorge, 83 Mo., 
 
 derson, 20 U.C. Q.B., 438; Adams 152. 
 
372 SALES. [chap. XXI. 
 
 § 459. Parol evidence is admissible to the same extent, 
 in explaining the contents of the telegram, as of contracts 
 by letter ; no more, no less. It has been held in several cases 
 that parol evidence is admissible to explain abbreviations in 
 a telegram, or letter, or note or memorandum. 1 
 
 § 460. In Trevor v. Wood 2 it appeared that the plaint- 
 iffs and defendants were dealers in bullion ; the one at New 
 York, the other at New Orleans. The}' agreed to deal with 
 each other in the purchase and sale of dollars, and that all 
 communications in regard thereto should be by telegraph. 
 
 The appellants telegraphed to the respondents asking at 
 what price they would sell one hundred thousand Mexican 
 dollars. The respondents answered that they would deliver 
 fifty thousand at seven and one-quarter. 
 
 The appellants immediately, January 31, telegraphed as 
 follows : 
 
 " To John Wood & Co. : Your offer of fifty thousand 
 Mexicans at seven and one-quarter accepted; send more if 
 you can. Tkevob & Colgate." 
 
 They also mailed a letter to the Messrs. Wood acknowl- 
 edging the receipt of their telegram, and copying the ap- 
 pellants' telegraphic answer. The respondents on the same 
 day mailed a letter to the appellants, copying respondents' 
 telegram of that date. 
 
 February 1, the appellants telegraphed : 
 
 " To John Wood & Co. : Accepted by telegraph yester- 
 day your offer of fifty thousand Mexicans ; send as many 
 more, same price. Eeply. Teevok & Colgate." 
 
 This telegram, as also that of January 31, did not reach 
 the respondents until 10 A. M., February 4, in consequence 
 of some derangement in a part of the line used by the ap- 
 pellants, but which was not known to the appellants until 
 
 1 Salmon Falls Manufacturing Hubbard's Administrators, 21 
 
 Company v. Goddard, 14 How. (U. Wend., 657; Peich v. Dickson, 1 
 
 S.)E., 446; Scovell v. Griffiths, 2 Mass., 12. 
 
 Kernan (N. Y.), 509; Spencer v. 2 36 N. Y., 307. 
 Babcock, 22 Barb., 326; Fish v. 
 
CHAP. XXI.J MEMORANDUM CONTRACTS BY TELEGKAPH. 373 
 
 February 4, when the telegraph company reported the line 
 down. 
 
 February 3, the respondents telegraphed to the appellants : 
 "No answer to our dispatch — dollars are sold," and on the 
 same day they wrote by mail to the same effect. The ap- 
 pellants received this dispatch on the same clay, and an- 
 swered it on the same day as follows : 
 
 " To John Wood & Co. : Your offer was accepted on re- 
 ceipt; "and the next day, "the dollars must come or we 
 will hold you responsible. Reply. Teevob & Colgate." 
 
 And again, February 4, insisting on the dollars being sent 
 " by this or next steamer," and saying, " don't fail to send 
 the dollars at any price." The same day, February 4, the 
 respondents telegraphed to the appellants as follows : " No 
 dollars to be had. We may ship by steamer 12th, as you 
 propose, if we have them." 
 
 No dollars were sent, and this action was brought to re- 
 cover damages for an alleged breach of contract in not 
 delivering them. The referee found for the plaintiff in the 
 sum of $-219.33. 
 
 It would seem from these facts that the offer was made 
 on January 31, and the respondents did not attempt to re- 
 voke it until February 3. " The offer was accepted by the 
 appellants before," says Scrugham, J., " but the respondents 
 did not obtain knowledge of the acceptance until after this 
 attempted revocation. The principal question, therefore, 
 which arises in the case, is whether a contract was created 
 by this acceptance before knowledge of it reached the re- 
 spondents." 
 
 § 461. The principle established in Mactier v. Frith, 1 
 and adhered to in Vassar v. Camp, 2 seems to settle the par- 
 ticular question herein involved. It is held there that it is 
 only necessary that there should be a concurrence of the 
 minds of the parties upon a distinct proposition, manifested 
 by an overt act; and "that the sending of a letter an- 
 nouncing a consent to the proposal was a sufficient mani- 
 
 i 6 Wend., 103. 2 1 Kernan, 441. 
 
374 SALES. [CHAP. XXI. 
 
 festation and consummated the contract from the time it 
 was sent." 
 
 The court said : " The sending of a letter accepting the 
 proposition is regarded as an acceptance, because it is an 
 overt act clearly manifesting the intention of the party- 
 sending it to close with the offer of him to whom it is sent, 
 and thus marking that ' aggregatio mentium ' which is neces- 
 sary to constitute a contract." 
 
 After quoting from the opinion of Marcy, J., in Mactier 
 v. Frith, to the effect that acceptance depends largely upon 
 circumstances ; that where the offer is by letter the usual 
 mode of aceptance is by letter ; that keeping silence under 
 certain circumstances is an assent to a proposition; and 
 ' : anything that shall amount to a manifestation of a formal 
 determination to accept, communicated or put in the proper 
 way to be communicated to the party making the offer, 
 would doubtless complete the contract ; " and after stating 
 the fact that the agreement between the parties was that 
 they should transact business through the medium of the 
 telegraph, Mr. Justice Scrugham says : " Under these cir- 
 cumstances the sending of the dispatch must be regarded 
 as an acceptance of the respondents' offer and thereupon 
 the contract became complete. I cannot conceive upon 
 what principle an agreement to communicate by telegraph 
 can be held to be in effect a warranty by each party that 
 his communication to the other shall be received. On the 
 contrary, by agreeing beforehand to adopt that means of 
 communication the parties mutually assume its hazards, 
 which are principally as to the prompt receipt of the dis- 
 patches." After making reference to the finding of the 
 referee, that the respondents answered the telegram of the 
 appellants asking at what price they would sell one 
 hundred thousand Mexican dollars by another teleo-ram as 
 follows, viz. : 
 
 "Trevor & Colgate, New York: Will deliver fifty 
 thousand at seven and one-quarter, per Moses Taylor. An- 
 swer. John Wood & Co.," 
 
CHAP. XXI.] MEMORANDUM CONTRACTS BY TELEGRAPH. 375 
 
 the court said : " It was proved at the trial that the tele- 
 gram was sent by the respondents, and a letter of the same 
 date, signed by them, repeating the telegram and stating 
 that they had sent it, was read in evidence." 
 
 The court concludes that " this affords sufficient evidence 
 of subscription by the respondents to take the case out of 
 the statute of frauds." 
 
 The judgment was accordingly reversed. 
 
 § 462. North v. Mendel 1 was an action to recover $200 
 and upwards, " for five boxes pork bellies," shipped from 
 Boston for Savannah, per steamship. The goods were 
 shipped upon the order of one Freeman, who was dealt 
 with as the agent of the plaintiffs. 
 
 The order was by telegram, which read as follows : 
 
 " Mendel five bellies, eight. Ehrlich offers seven-eighths 
 ten bellies lighter than last." 
 
 On the same day, January 16, 1884, Freeman wrote in 
 his entry-book the following : 
 
 " Sold account C. H. North & Co., Mendel, five bellies, 
 eight." 
 
 The telegram and entry constituted the note or memo- 
 randum sued on. 
 
 The steamship on which the goods were shipped was 
 wrecked and lost before reaching Savannah; the goods 
 never reached the defendants. 
 
 The jury in the court below found for the defendants; a 
 motion for a new trial was overruled. 
 
 The defense was that the defendants never accepted the 
 goods; that nothing was given in way of earnest or part 
 payment; and that the promise was not in writing and 
 signed by them, nor by any person authorized by them to 
 
 do so. 2 
 
 The evidence tended to show that Freeman had dealt 
 with the defendants as agent of the plaintiffs, and that the 
 goods were to be paid for on delivery; while the plaintiffs' 
 evidence tended to rebut these positions. 
 
 i73Ga., 400. 2 Georgia Code, § 1950, sub-sec- 
 
 tion 7. 
 
376 SALES. [chap. XXI. 
 
 Hall, J., decided that the memorandum, taken either by 
 itself or in connection with the telegram, did not satisfy 
 the requirements of the statute of frauds. He stated the 
 rule to be as follows: "The statute does not require that 
 all the terms of the contract should be agreed to or written 
 down at one and the same time, nor on one piece of paper; 
 but where the memorandum of the bargain is found on 
 separate pieces of paper, and where these papers contain 
 the whole bargain, they form together such a memorandum 
 as will satisfy the statute, provided the contents of the 
 signed paper make such reference to the other written 
 paper or papers as to enable the court to construe the whole 
 of them together as containing all the terms of the bar- 
 gain. 
 
 " If, however, it be necessary to adduce parol evidence, in 
 order to connect a signed paper with others unsigned by 
 reason of the absence of any internal evidence in the signed 
 paper to show a reference to or connection with the un- 
 signed papers, then the several papers taken together do 
 not constitute a memorandum in writing of the bargain, 
 so as to satisfy the statute." l 
 
 Even if the entry and telegram were united by the in- 
 ternal evidence furnished by themselves, still they would 1 
 not satisfy the statute, as they do not show what property 
 was contracted for, what price was agreed upon, and the 
 parties to whom it was sold. The telegram is ambiguous 
 and unintelligible, without explanation, or translation, and 
 this the statute is intended to prevent. 
 
 In the words of the court, in Smith v. Jones, supra, the 
 rule should not be relaxed now, when the flood-gates are 
 open wide as to the competency of witnesses, and the only 
 breakwater left is to put this class of contracts, and others 
 of similar character, in writing. 
 
 The court, in the case under review, says : " The case in 
 hand falls under no exception recognized by our law, and 
 the testimony objected to on the trial by the defendants 
 
 1 Smith v. Jones, 66 Ga., 338; Benjamin on Sales, 220. 
 
CHAP.' XXI.] HEMOKANDTTM CONTRACTS BY TELEGKAPH. 377 
 
 should have been repelled." The judgment in favor of the 
 defendants was affirmed. 
 
 The opinion of the learned judge is such a clear exposi- 
 tion of the law involved in all such cases, it has been 
 deemed of sufficient value to give the same quite at length. 
 
 § 463. In Goodwin v. Francis, 1 where the original con- 
 tents for a telegram were signed by a party, and the clerk 
 of the telegraph company signed the message, it was held 
 a sufficient signing to satisfy the statute of frauds. 
 
 •L. R., 5 C. P., 295; Bundy v. see McBlain v. Cross, 25 L. T. (N. 
 Johnson, 6 U. C. C. P., 221. And S.), 804. 
 
CHAPTER XXII. 
 
 CONCERNING THE SIGNATURE OF THE PARTY. 
 
 § 464. The words "signed" and "subscribed," as used in the statute 
 of frauds. 
 
 465. Place of signature held to be immaterial in certain decisions. 
 
 466. Where signature appears in body of memorandum, a matter of 
 
 intention. 
 
 467. The statute of frauds of New York ; early cases on the subject 
 
 of signature. 
 
 468. Cases of James v. Patten and Davis v. Shields. 
 
 469. Signature above the body of the memorandum held sufficient 
 
 in an early Massachusetts case. 
 
 470. Same in New York before the amendment of the statute of 
 
 frauds. 
 
 471. The same subject ; Coddington v. Goddard. 
 
 472. A memorandum beginning, "I, A. B., agree," and not signed, 
 
 held to be within the statute of frauds, discussed in Hawkins 
 v. Chace. 
 
 473. Jury may determine whether the party is bound in certain 
 
 cases. 
 
 474. Difference between " signed " and " subscribed ; " both parties 
 
 must assent to the contract ; Davis v. Shields. 
 
 475. The case of Davis v. Shields further considered. 
 
 476. Case of signature in body of memorandum ; held to be void. 
 
 McGivern v. Fleming. 
 
 477. Conflict of authority as to signature by initials being sufficient 
 
 to satisfy the statute of frauds. 
 
 478. Where the signature is printed it has been held sufficient. 
 
 479. The same subject ; and where seal is used. 
 
 480. A simple mark by a party is sufficient. 
 
 481. Written part prevails over printed. 
 
 482. The material to be used in writing is a matter on which the 
 
 statute is silent ; it is left to convenience and usage. 
 
 483. The statute of frauds imports an informal writing in the hurry 
 
 of commercial business. 
 4S4. The instrument to be used for writing is not mentioned; in dif- 
 ferent ages of the world different instruments have been used 
 sine's the days of Job. 
 
CHAP. XXII.] OONCEENING SIGNATITKE OF PARTY. 379 
 
 § 464. The statute of frauds of the several states requires 
 the note or memorandum to be either " signed," or " sub- 
 scribed," by the parties to be charged. 
 
 In general, where the statute simply requires the note or 
 memorandum to be signed, it is held to be sufficient if the 
 signature be written or appear in any part of the instru- 
 ment. On the other hand, it is well settled in those states 1 
 where the statute of frauds requires the note or memoran- 
 dum to be subscribed, that the signature of the parties must 
 be written or appear at the bottom thereof. In those states 
 a strict construction is uniformly given to the word sub- 
 scribed. In either case the intention of the parties must be 
 gathered from the writing itself. 
 
 The word party or parties to the contract is not to be 
 construed party, as to a deed, but person in general. 
 
 § 465. There are numerous cases in the states where the 
 word "signed" is used in the statute of frauds, which hold 
 that a substantial signing is sufficient. 2 
 
 Thus, in Higdon v. Thomas, 3 the court held that it was 
 entirely immaterial in what part of the instrument the name 
 of the party to be charged appeared, if it was put there by 
 him, or by his authority. 
 
 And in Drury v. Young, 4 Stone, J., observes that the 
 above decision settles the question that the place of signa- 
 ture in the memorandum " is immaterial." 
 
 The cases in New York, before the amendment of the 
 statute of frauds in 1830, held to the same view. 
 
 The English cases are also equally emphatic that the name 
 may as well be printed as written, if the printed name is 
 adopted by the party to be charged. 5 
 
 J California, Colorado, Minne- 3 1 Harr. & Gill, 139, 152. 
 
 sota, Nevada, New York, Oregon *58Md., 546. 
 
 and Wisconsin. 6 Roberts - on Frauds, 119; Mor- 
 
 2Boardmant\Spooner, 13 Allen, rison v. Tonner, 18 Ves., 175; 
 
 357 ; Fessenden v. Mussey, 11 Cush., Saunderson v. Jackson, 2 B. & P., 
 
 127 ; Salmon Falls Manufacturing 238 ; Schneider v. Norris, 2 M. & S. , 
 
 Company v. Goddard, 14 How. 286; Bill v. Bament, 9 M. & W., 
 
 (U. S.), 446. 36. 
 
380 SALES. [CHAP. XXII. 
 
 On the other hand, in the states where the word sub- 
 scribed is used in the statute relating to the sale of goods, 
 etc., the court have held to a strict construction and require 
 the signature of the parties to be charged to be written or 
 appear at the bottom or end of the note or memorandum. 1 
 
 In Coon v. Eigden 2 Elbert, J., observes that the " term 
 " subscribed ' is a substitute for the term ' signed,' used in 
 the English statute, 29 Charles II., and is held in its habitual 
 use, and according to both its popular and literary signifi- 
 cation, to require a signature at the end of a printed or 
 written instrument." 
 
 § 466. It has, however, in many cases very properly 
 been held that, where the statute of frauds requires the 
 memorandum to be signed, if the signature is not written, 
 or does not appear at the end of the note or memorandum, 
 it becomes a question of intention, to be determined by the 
 other circumstances in the case, whether the name, if it be 
 written or appear in the body of the memorandum, was ap- 
 propriated by the party to the recognition of the contract. 3 
 It would doubtless be a question for the jury to determine 
 under all the facts and circumstances of the case. 
 
 § 467. Under the revision of the statutes of New York 
 in 1830, and in several other states, the statute of frauds 
 requires the signature of the parties to be charged to be 
 written or appear at the end of the memorandum — that 
 is, to be literally subscribed. 
 
 Before this change in the statutes the decisions were quite 
 uniform in holding that the signature was not required to 
 be literal or formal, but that a substantial signing satisfied 
 the statute. 
 
 The legislature evidently intended to insure a more accu- 
 rate authentication. For, as was significantly said by a 
 
 1 Vielie v. Osgood, 8 Barb., 130; bell, 3 H. &Munf., 144, 198; Hawk- 
 
 Bleeker v. Franklin, 2 E. D. Smith, ins v. Chace, 19 Pick. , 502 ; Batturs 
 
 93 - v. Sellers, 5 Harr. & J. (Md.), 117; 
 
 H Colorado, 282. Benjamin on Sales, 259; Ridgway 
 
 3 Coddington v. Goddard, 16 v. Ingram, 50 Ind., 145. 
 
 Gray, 444; Argenbright v. Gamp- 
 
CHAP. XXII.] CONCERNING SIGNATURE OF PARTY. 381 
 
 writer remarkable for precision in the use of language, 
 " signing " does not ex vi termini mean that the name of 
 the party to be charged shall be subscribed. 
 
 By a reference to the early cases, it will be found that 
 before this amendment a pretty large license was taken 
 in construing the language of the statute. 1 The word 
 " signed " was applied to every written authentication. 
 
 The courts under the previous law, setting out with the 
 supposition that a literal signing was unnecessary, had 
 drifted, uncompassed, into a sea of incertitude, and thus it 
 was deemed prudent to substitute the more clearly denned 
 term subscribed for signed. 
 
 § 468. In James v. Patten 2 the memorandum read: 
 
 " Albany, March 12, 1847. 
 " Mr. Thomas James, bought of M. & S. Patten : 
 
 " For the relief committee, three thousand bushels yellow 
 corn (fifty-six pounds per bushel), to.be delivered at the 
 opening of the Hudson river navigation at our store in Al- 
 bany, at eighty-one cents per bushel, $2,430." 
 
 It was in the handwriting of S. Patten. The principal 
 contention of the defendants was that the memorandum 
 was not subscribed by them. Judgment was rendered for 
 the plaintiff; the defendants appealed to the general term 3 
 where a new trial was denied. An appeal was taken to 
 the court of appeals. 
 
 The statute of frauds of New York, passed February 26, 
 1787, 4 and the English statute, 29 Car. 2, ch. 3, sec. 17, were 
 substantially in the same words, requiring the note or mem- 
 orandum of the contract to be "signed" by the parties to 
 be charged. 
 
 When the New York statutes were revised in 1S28, the 
 revisers substituted the word " subscribed " for the word 
 " signed." 
 
 iMcComb v. Wright, 4 Johns. 2 6 N. Y. (2 Seld.), 9. 
 
 Ch. , 663 ; Clason v. Bailey, 14 Johns. 3 See James v. Patten, 8 Barb. , 344. 
 
 R., 484; Downs v. Eoss, 23 Wend. U Rev. L. of 1813, p. 79, sec. 15. 
 R., 271. 
 
382 SALES. • [chap. XXII. 
 
 In his- opinion, Paige, J., refers to the revision; to the 
 current line of decisions before the word subscribed was 
 used ; to the case of Davis v. Shields, 1 where the subject is 
 elaborately and learnedly discussed, and holds that the 
 above memorandum was not subscribed within the meaning 
 of the statute of frauds. Gardiner, J., in the same case, 
 believed that the legislature intended to substitute the pop- 
 ular meaning for one adopted by judicial construction, and 
 concurred with his associate for reversal of the judgment. 
 
 § 469. In the early Massachusetts case of Penniman v. 
 Hartshorn, 2 where the word " signed " is used in the statute 
 of frauds, the signature was above the body of the mem- 
 orandum nor was there any counterpart. In that state the 
 word signed is used in the statute of frauds. 
 
 The memorandum read : 
 
 "December 13, 1813. 
 *" Hartshorn and Arnold, of Providence: I sold to the 
 above gentlemen thirty-nine bales upland cotton at forty 
 cents ; sixty days for approved security. 
 
 " Silas Penniman. 
 
 " Bill to be made out in the names of H. & A., ~W. & B. 
 and A. T." 
 
 It was objected that it was not signed in the manner in- 
 tended by the statute. But Chief Justice Parker decided 
 that it was sufficiently particular and explicit to satisfy the 
 law, and cited Egerton v. Matthews. 3 As the weight was 
 not mentioned, the court held that, as bales of cotton are 
 nearly of the same size, the ordinary average weight will 
 be intended. And he further said that as the defendants 
 were the parties to be charged, and as their signature ap- 
 peared on the memorandum, it was sufficient to charge 
 them. 
 
 § 470. In the case of Merritt v. Clason 4 Mr. Chancellor 
 
 126 Wend., 341. 4 12 John., 102; affirmed in 14 id., 
 
 t 13 Mass. K., 87; Knight v. Crock- 487; Parker v. Wilson, 15 Wend., 
 
 ford, 1 Esp., 190. 346; Eoberts on Frauds, 119; Ben- 
 
 s 6 East, 307. janain on Sales, 259. 
 
CHAP. XXII.] CONCERNING SIGNATURE OF PARTY. 383 
 
 Kent substantially said that forms are not to be regarded, 
 and the statute is satisfied if the terms of the contract are 
 in writing, and the names of the contracting parties appear. 
 But this case was before the amendment substituting the 
 word subscribed for signed in the statute of frauds of that 
 state. 
 
 In some of the earlier decisions even, the judges in giving 
 to the word signed a judicial interpretation were governed 
 by the intention of the parties as gleaned from the contract. 
 But the extension of its meaning became by degrees so en- 
 larged, in some cases, that it was held to include any men- 
 tion whatever, in the memorandum, of the parties to be 
 charged. So that if the name appeared in the memoran- 
 dum as applicable to the subject-matter, it was considered 
 immaterial whether the name was at the bottom or top; or 
 whether it was a signature to a bargain, or merely men- 
 tioned in the writing as that of the buyer or seller. 
 
 The cases bearing upon this particular branch of the sub- 
 ject are numerous. 1 If, taking the signature in connection 
 with the memorandum, it could reasonably be inferred that 
 it was placed there to validate the contract, it was deemed 
 sufficient. This seeming laxity of interpretation still exists 
 to some extent in those states where the word signed is 
 used in the statute of frauds. 
 
 §471. In the case of Coddington v. Goddard, 2 Bigelow, 
 C. J., decided that it was quite immaterial whether the names 
 of the parties to be charged were written at the bottom of 
 the memorandum or not. He substantially held, that if 
 the names are inserted in such manner as to indicate that 
 it is their contract, and the terms of the bargain are com- 
 pletely expressed, it is sufficient. For the law looks to the 
 substance and not to the form of the memorandum. As 
 already indicated, a similar view was expressed by Chan- 
 cellor Kent in an early New Tork case. 
 
 i Propert v. Parker, 1 Euss. & M., 2 16 Gray (Mass.), 444, and cases 
 625 ; Stokes v. Moore, 1 Cox, 219 ; there cited. 
 1 P. Wm,, 171: Cabot v. Haskins, 
 3 Pick., 83. 
 
3S4 SALES. [chap. XXII. 
 
 So, also, in Hawkins v. Chase, 1 the court went so far as to 
 hold that a bill of parcels, in the usual form, written by a 
 third person by the direction of the vendor, was a suffi- 
 cient memorandum of the contract within the meaning of 
 the statute of frauds of Massachusetts, where the word 
 " signed " is used. 
 
 But in Selby v. Selby, 2 a letter from a mother to her son, 
 beginning, " My dear Robert," and concluding, " Your af- 
 fectionate mother," was held not signed so as to constitute a 
 binding contract on the part of the mother, within the in- 
 tent of the statute of frauds. 
 
 § 472. In Knight v. Crockford 3 it was substantially held 
 that, if a man write an agreement beginning "I, A. B., 
 agree," and not sign it, but leave a place for signature at 
 the bottom, it may be taken as a memorandum in writing 
 within the statute of frauds. And yet it seems no more 
 than if it had been said, by A. B., that he would sign a 
 particular paper. 4 
 
 The court, in Hawkins v. Chace, 5 in discussing the above 
 case, was unable to refer to any case in which such a signa- 
 ture had been deemed good, unless where it appeared from 
 the paper that the name was introduced by the party to be 
 charged, in his own handwriting, as in Knight v. Crockford, 
 and Penniman v. Hartshorne; 6 or where the party making 
 the memorandum has stood in such relation as to give effect 
 to his act, to bind his principal or employer. " We think 
 there is no doubt," said the court, " that if one is specially 
 requested to sign or authenticate a paper for another, and 
 he puts the name of his principal to any part "of the paper 
 for that purpose, it would be good, though we are not 
 aware that any case cited is precisely to that point." 
 
 § 473. In Johnson v. Dodgson 7 the defendant, vendee, 
 
 1 19 Pick. (Mass.), 502. 4 Hubert v. Treherne, 3 M. & G., 
 
 2 3 Mer. , 2 ; De Birt v. Thompson, 743. 
 3Beav.,471. 5 19 Pick-j 5^ 
 
 3 1 Esp., 190; Sari v. Boudellon, 6 13 Mass., 87. 
 
 1 C. B. N. S., 188 ; Durrell v. Evans, "Z M. & W., 653 ; Schneider v. 
 1 H. & C, 174; 31 L. J. Exch., Norris, 2 M. & S., 286; Beckwith 
 33 7- v. Talbot, 95 U. S., 289. 
 
CHAP. XXII. J CONCERNING SIGNATURE OF PARTY. 385 
 
 wrote in his book the bargain as agreed, " Sold John Dodg- 
 son," and the plaintiff, the vendor, signed it. Lord Abinger 
 said : " The cases have decided that, though the signature 
 be in the beginning or middle of the instrument, it is as 
 binding as if at the foot; the question being always open to 
 the jury whether the party, not having signed it regularly 
 at the foot, meant to be bound by it as it stopd, or whether 
 it was left so unsigned because he refused to complete it." 
 
 § 474. The first case which arose under the statute ef 
 frauds, where a full consideration was given to the meaning 
 of the word subscribed, was Davis v. Shields. 1 There 
 Chancellor "Walworth and Senator Verplanck clearly defined 
 the difference between the words subscribed and signed, and 
 lucidly illustrated the advantages of explicitness in the use 
 of terms. 
 
 There one Green, a broker, was authorized by the plaint- 
 iffs to sell one hundred tons of English bar iron, which they 
 were to receive (but not then arrived) per brig " Anna." 
 Green offered to sell, and the defendant agreed to buy, 
 fifty tons of said iron at the rate of $70 per ton, " payable 
 in six months " from its delivery, provided the iron arrived 
 in good order within a reasonable time. 
 
 The agreement was not subscribed by either party, but 
 Green made the following memorandum in his book: 
 
 " January 21st. Sold this day to George "W. Shields, on 
 account of Davis & Brooks, fifty tons of English bar iron. 
 
 Say 25 tons If and £. 
 
 25 tons | 
 
 50 
 At 70 cents, to arrive on board per brig Anna. Said iron 
 to be in good order or no sale." 
 
 The memorandum, it will be observed, does not contain 
 the terms of sale as agreed upon, neither as to the purchaser 
 not taking the iron if it did not arrive in a reasonable time 
 
 126 Wend. R., 342; affirming S. Vaupel v. Woodward, 3 N. Y. 
 C, 24 id., 324, decided in 1841; Legal Obs., 132 (1845). 
 25 
 
386 SALES. [chap. XXII. 
 
 and in good order; nor as to the price of $70 per ton; but 
 it was assumed by the chancellor, that " the substitution of 
 ' 70 cents ' for $70," was a mere typographical error in the 
 printing of the memorandum. 
 
 Defendants claimed the performance of the contract ; they 
 tendered their note at six months in payment, and subse- 
 quently tendered the cash ; but the plaintiffs declined to re- 
 ceive either and refused to d Oliver the iron. The plaintiffs 
 had judgment. The defendant sued out a writ of error. On 
 appeal, the court decided that the word subscribed, in the 
 statute of frauds, required an actual subscription of the 
 names of the parties to be charged, at the end of the con- 
 tract. 
 
 Senator Verplanck, after an interesting exposition of the 
 difference between the judicial and the popular meaning of 
 the words signed and subscribed, said: " Adding, then, these 
 manifest considerations of public utility to the cumulative 
 evidence of the history of the law and the meaning of the 
 words successively employed, either in their popular, their 
 literary, or their legal signification, I cannot doubt at all 
 that the subscription required by the statute is no longer 
 satisfied by the bare mention of the name in the body of 
 the memorandum, but must be such a subscription as clearly 
 denotes a deliberate assent to the settled terms of a contract." 
 , Chancellor "Walworth also held that the name of the par- 
 ties to be charged must be signed below, or at the end of 
 the memorandum. That under the old statute, merely 
 mentioning in a note of sale the name of the party sought, 
 to be charged was considered enough, but it was no longer 
 sufficient. 1 
 
 " Although it is not necessary that both parties should 
 subscribe the agreement," says the court, "to make it 
 obligatory upon the one who does subscribe the same, it is 
 necessary that they should both assent to such agreement 
 tq make it binding upon either." 
 
 !2R. S., 70, 136, sec. 3; Revis- Parker v. Wilson, 15 Wend. R. 
 ers' notes, 3 R. S., 2d ed., 656-7; 346. 
 
OHAP. XXII.] CONCERNING SIGNATURE OF PARTY. 887 
 
 § 475. In Davis v. Shields, 1 Senator Paige, one of the 
 judges sitting on the appeal, dissented from the opinions of 
 Chancellor "Walworth and Senator Verplanck. He did not 
 think the legislature intended to change the law ; and be- 
 lieved that the word signed, as used in the statute of frauds, 
 having received a fixed judicial construction, should be 
 applied to the word subscribed as well. 
 
 In James v. Patten, 2 however, a case decided a few years 
 later, Paige, J. (formerly senator), in delivering the opinion 
 of the court, after reviewing a number of cases, and stating 
 that he disagreed with the court in Davis v. Shields, said: 
 " From my present examination of this question 1 am satis- 
 fied that I was mistaken in the opinion I then expressed." 
 
 Chancellor "Walworth, in the subsequent cases of Cole v. 
 Browne, 3 and Champlin v. Parish, 4 adhered to the same 
 general opinion that he had expressed in Davis v. Shields. 
 A like decision was also given in the supreme court, for the 
 fourth district of New York, in Vielie v. Osgood. 5 In James 
 v. Patten, supra, Gardner, J., did not doubt the intention of 
 the legislature in changing the phraseology of the statute, 
 in giving to it the popular meaning — subscribed instead of 
 signed. 
 
 § 476. In the recent case of McGivern v. Fleming, 6 the 
 question as to the place of signature specifically arose. 
 There, the contract sued on contained the signature of the 
 defendant, which was in the body of the written memoran- 
 dum, above and below which articles of merchandise were 
 written. 
 
 The case was tried in the city court of New York, and a 
 verdict rendered for the plaintiff. The general term of that 
 court reduced the judgment to the extent of the items which 
 were below the signature in the memorandum, and affirmed 
 the judgment as to the residue. 
 
 1 26 Wend. , 342. i 11 Paige R. , 411. 
 
 2 2 Selden R., 16; 55 Am. Dec, 5 8 Barb. R., 130. 
 
 376; 40 Am. Dec, 698. 6 12 Daly's Rep., 289 (January, 
 
 » 10 Paige R. , 537. 1884) ; Burrel v. Root, 40 N. Y. , 498. 
 
SALES. [CHAP. XXII. 
 
 The general term of the court of common pleas reversed 
 the judgment and ordered a new trial. Van Hoesen, J., 
 said : " It is obvious that, in the opinion of that court (the 
 city court), if a note or memorandum of a contract for the 
 sale of personal property be signed, not at the end, but in 
 the midst of the list of articles sold, the contract may be 
 split into pieces, and the fragments that precede the signing 
 will be valid, while the fragments that follow the signing 
 will be void. I am not aware of any decision that warrants 
 such a construction of the statute. . . The defendant 
 has not subscribed the note or memorandum, and that he 
 must do in order to bind himself." 
 
 The court held that the statute could not be circumvented 
 in the way it seems to have been done in the court below. 
 
 The city court seems to have based its decision upon the 
 Massachusetts and English cases, where the word sighed is 
 used in the statute. 1 But in New York, since the statute 
 was amended by substituting the word subscribed for 
 signed, a different rule of construction has been uniformly 
 adhered to, as also in the other states where the word sub- 
 scribed is used in the statute of frauds, and even where the 
 word signed is used in the statute. 2 
 
 § 477. An able writer on the law of evidence 3 declares 
 that a signature by initials is not sufficient, within the 
 meaning of the statute of frauds, and cites certain cases in 
 support of his proposition. 4 While on the other hand, a 
 distinguished author of a wo"rk on vendors 5 cites the same 
 authorities in support of his conclusion that " it is sufficient, 
 it seems, if the initials of the name are set down." 
 
 Neither of the cases referred to by the respective authors 
 seems to be definite or decisive of the question. 
 
 It is, however, pretty well settled, that if only the initial, 
 
 » But see Rand v. Mather, 11 a Roscoe on Ev. (6th ed.), 265. 
 
 Cush.,l;Haynesv. Nice, 100 Mass., < Jacob v. Kirke, 2 M. & Rob., 
 
 327; Boyd v. Eaton, 44 Maine, 51; 221; Sweet v. Lee, 3 M. & G., 452. 
 
 Pecker v. Kennison, 46 N. H., 488. 6 Sugden on Vend. & P. (11th 
 
 2 Drury v. Youn^ 58 Md., 546. ed.), 128, 144. 
 
CHAP. XXII.] CONCERNING SIGNATURE OF> PARTY. 389 
 
 or initials, appear in the memorandum, it must be clearly 
 made to appear that the same was so intended by the party 
 who wrote it. 1 
 
 § 478. There are some decisions holding that a printed 
 signature is sufficient. 
 
 Thus, in Torret v. Orupps, determined in the high court 
 of justice in England, in May, 1879, where the defendant 
 wrote and sent a letter to the plaintiff containing an offer 
 of lease, stating the terms, which letter was not signed in 
 writing, but written on a sheet of memorandum paper the 
 caption of which bore the printed words: "From Eicbard 
 L. Crupps," and his address. Upon tbe plaintiff's accept- 
 ance of the offer, the defendant refused the lease, and the 
 action was brought to compel specific performance. The 
 defense was, that the signature did not satisfy the statute of 
 frauds. The court, Hall, V. C, referring to Schneider v. 
 Nbrris, 2 wherein the principle was discussed by Lord Ellen- 
 borough, says that, "'where a party desiring to sell sends the 
 party desiring to buy, a document containing the name of 
 the former party, though it may be in print, yet in such a 
 way as to sbow that the sender recognized it to be his own 
 name, and the document contains the terms of a contract, 
 that is a sufficient note in writing to charge the sender." 
 That the document constituted, as far as regards the sender, 
 a good contract under the statute of frauds, as well as ac- 
 cording to the ordinary understanding. 
 
 So, it has been held in some English cases, where the 
 name of the seller (the defendant) in the bill of parcels was . 
 printed, and he had written the vendee's name upon it, that 
 it was a sufficient signing to satisfy the statute of frauds. 3 
 
 § 479. As already indicated, different modes of signing 
 bave been held sufficient. If a party is in the habit of 
 
 i Saunderson v. Jackson, 2 B. & M. Co. v. Goddard, 14 How. (U. S.,) 
 
 P., 238 ; Caton v. Caton, L. R., 2 H. 446. 
 
 L., 127; Chichester v. Cobb, 14 L. 2 2 Maule & Sel., 286. 
 
 T. (N. S.), 433; Sanborn v. Flagler, 3Beckwith v. Talbot, 95 U. S., 
 
 9 Allen, 474; Barry v. Combe, 1 289. 
 Peters (U. S.), 630; Salmon Falls 
 
390 SALES. [chap. XXII. 
 
 printing his name instead of writing it, the insertion of his 
 name in that form to a bill of parcels would be a sufficient 
 signing to satisfy the statute. 1 
 
 If, in a bill of parcels printed with the name of the 
 vendor, he insert the name of the vendee, this is held to be 
 a sufficient signing and recognition of the printed signa- 
 ture to bind the vendor. 2 And if a seal be affixed to the 
 memorandum in the presence of a witness who attests it, 
 and is so placed in order to be binding, it was held in one 
 case to be equivalent to a signing within the statute. 
 
 The above decisions seem to be held as good law in Eng- 
 land, and in some of the states of this country, in which 
 the statute of frauds contains the word signed; but in 
 those states where the word subscribed is used, in order to 
 be binding the name must be written or appear at the bot- 
 tom or end of the memorandum. 
 
 § 480. It is universally held by the American and Eng- 
 lish authorities, that if simply a mark be made by the 
 party to be charged, it will be sufficient, and so will only 
 the initials if so _ intended. Thus the conclusion follows 
 that -the statute does not require the memorandum to con- 
 tain the actual subscription of the entire name of the party 
 to be charged ; 3 and whether signed in ink, or pencil, or in 
 stencil or stamped with the name, 4 it is equally sufficient 
 and binding. 
 
 1 Saunderson v. Jackson, 2 Bos. 3 2 Kent, 511 ; Beckley v. Keenan, 
 
 &Pul., 238. 60 Ala., 293; Baker v. Dening, 8 
 
 'Schneider v. Norris, 2 Maule & Ad. & E., 94; Harnson v. Elvin, 3 
 
 Sel., 286. Where B. wrote A."s Q. B., 117; Sanborn v. Flagler, 9 
 
 name over the printed words, Allen, 474, 478 ; Hubert v. Moreau,- 
 
 " Bought of B. & Co. cotton yam 2 C. & P., 528; Barry v. Coonibe, 
 
 > and piece goods," and underneath 1 Peters (U. S.), 640. 
 a list of goods and their prices, it 4 Geary v. Physic, 5 B. & C, 234; 
 
 was held sufficient to hold B. Bennet v. Brumfith, L. B., 3 C. P., 
 
 Lemaine v. Stanley, 3 Levins, 1; 1 28; Clason v. Bailey, 14 Johns., 
 
 Roll. Abr., 245, sec. 25. Sealing 484; McDowel v. Chambers, 1 
 
 without signing is not a sufficient Strobh. , 347 ; Draper v. Pattina, 2 
 
 signing within the statute of wills. Speers, 292. But see Boardman v. 
 
 Wright v. Wakeford, 17 Ves., 454; Spooner, 13 Allen, 353. 
 Ellis v. Smith, 1 Ves. Jun., 11. 
 
CHAP. XXII.J CONCERNING SIGNATURE OF PARTY. 391 
 
 § 481. It is>also well settled that, if a contract be partly 
 written and partly printed, the written matter will ordina- 
 rily prevail over the printed in case of any conflict between 
 them. 1 
 
 § 482. The statute of frauds is not only silent as to what 
 material shall be used, but is silent also as to whether the 
 letters are to be impressed upon paper, parchment or other 
 substance. All this has been left to public convenience and 
 usage; and as far as questions on this subject have arisen, 
 the courts have, with great latitude and liberality, left the 
 parties to their own discretion. It has, accordingly, been, 
 admitted that printing was writing within the meaning of 
 the statute of frauds, and that stamping was equivalent to 
 signing; and also, that making a mark was, within the 
 statute, a subscribing. 2 • 
 
 § 483. In reasoning out the purpose and intention of 
 the clause of the statute of frauds as to signiiig, it readily 
 occurs that it imports an informal writing done on the 
 spot, in the moment and hurry and tumult of commercial 
 business ; and that a lead pencil is generally the most ac- 
 cessible and convenient instrument of writing on such occa- 
 sions. Chancellor Kent, in Clason v. Bailey, 3 said : " I see 
 no good reason why we should wish to put an interdict on 
 all memoranda written with a lead pencil. I am persuaded 
 it would be attended with much inconvenience, and afford 
 more opportunities and temptations to parties to break 
 faith with each other, than by allowing the writing with a 
 pencil to stand." 
 
 In the case of Merritt v. Clason, 4 Pratt, J., maintained 
 the view that the memorandum required by the statute may 
 be written with a lead pencil as well as with a pen and ink. 
 In fact, in most of the reported cases on this head, the 
 memoranda were written with a lead pencil. 
 
 iHill v. Miller, 76 N. Y„ 32 
 Briggs v. Partridge, 64 id., 357 
 Clark v. Woodruff, 83 id,, 518 
 aff'g 18 Hun, 419. 
 
 2 2B1. Comm., 297. 
 3 14 Johns., 484. 
 412 Johns., 102. 
 
392 SALES. [CHAP. XXII. 
 
 § 484. Neither the statute of frauds, nor the decisions, 
 declare that any particular material or instrument shall be 
 used in writing the signature or memorandum. 
 
 Ideas by visible letters are expressed by writing, but the 
 mode and manner of impressing those letters is no part of 
 the definition of writing. 
 
 In different ages of the world various instruments, as 
 well as different kinds of materials, have been used in writ- 
 ing; such as stones, metals, bark and leaves, wood, wax, 
 ivory, shells and skins of animals. Instruments for writ- 
 ing have been chisels, styles of iron or bone, reeds and 
 quills; while in ancient times, ink was made of the liquor 
 of the cuttle-fish, cinnabar, etc. 
 
 In the days of Job it is said that writing was done upon 
 lead with an iron pen; until finally parchment was used; 
 and the calamus or reed was introduced. 
 
CHAPTER XXIII. 
 
 OF THE PERSON LAWFULLY AUTHORIZED TO SIGN THE 
 NOTE OR MEMORANDUM. 
 
 § 485. An agent may sign the memorandum. 
 48G. Agent lawfully authorized; statute of frauds of the several 
 states as to. • 
 
 487. Parol authority of an agent. 
 
 488. Special power in the agent. 
 
 489. When is the signature of the agent deemed the signature of the 
 
 principal. 
 
 490. An example ; Bailey v. Clason. 
 
 491. Similar examples. 
 
 492. When will the agent be. personally liable under a contract made 
 
 by him for an undisclosed principal, 
 
 493. What is a broker. 
 
 494. He acts for his principals ; no effect passes out of him. 
 
 495. Is he agent of both parties. 
 
 496. The general practice of brokers in dealing for parties. 
 
 497. Effect of broker's entry in his book. 
 
 498. Example of a valid memorandum by broker ; Newberry v. Wall. 
 
 499. A valid memorandum made and delivered to the contracting 
 
 parties will bind them. 
 
 500. Principal bound though only the broker's name appear in the 
 
 contract signed. 
 
 501. Where memorandum of broker was held insufficient. 
 
 502. Memorandum of broker ; the case of Bailey v. Ogden. 
 
 § 485. An agent is a person who acts by authority in 
 the name and place of another. 
 
 In general the word agent includes also a special class of 
 persons, as brokers, factors and auctioneers. 
 
 An agent, who is, strictly speaking, a third person, may 
 have a general or special authority in relation to a special 
 subject, or he may have a general power in relation to all 
 subjects. His authority may be proved by parol in respect 
 to contracts arising under the statute of frauds. 
 
394 SALBS. [chap. XXIII. 
 
 It may be stated as a principle governing the law of 
 agency and evidence, that whether the statute of frauds 
 contain a provision clothing the agent with authority to 
 sign the note or memorandum or not, an authorized agent 
 acting within the scope of his powers would bind his prin- 
 cipal. 
 
 The fact of agency may be evidenced by a ratification of 
 the acts of the person so acting, as also by antecedent dele- 
 gation of authority. 1 
 
 § 486. The statute of frauds of several of the states 
 contains a clause to the general effect that the note or 
 memorandum must be signed, or subscribed, by the party 
 to be charged, or by his lawfully authorized agent, that is 
 to say : 
 
 (a) By some person thereunto by him (the party to be 
 charged) lawfully authorized; 2 
 
 (b) or their agents lawfully authorzied; 3 
 
 (c) or by his agent ; 4 
 
 (d) or by his agent thereunto lawfully authorized; 
 
 (e) or by some person by him thereto authorized ; 6 
 
 (f) or their agents ; 7 
 
 (g) or by his lawfully authorized agent ; 8 
 
 (h) or some person by him lawfully authorized. 9 
 (i) By 3 K. S. of New York, 5th ed., p. 222, § 8, it is pro- 
 vided: "Every instrument required by any of the provis- 
 ions of this title to be subscribed by any party may be 
 subscribed by the lawful agent of such party." 
 
 § 487. Not only does a contract made by a duly au- 
 thorized agent have the same binding force as if made by 
 the principal himself, but the same rules apply as to the 
 
 1 Johnson & Miller v. Buck, 6 8 Florida and Missouri. 
 
 Vroom (N. J.), 338; Butler v. < Dakota, California and Maine. 
 
 Thomson, 2 Otto, 412 ; Smith v. 5 N ew Jersey. 
 
 Arnold, 5 Mason, 414 ; Bent v. Cobb, 6 New Hampshire. 
 
 9 Gray, 387 ; Newton v. Bronson, 4 1 Connecticut. 
 
 Kernan, 587. «Iowa, Nebraska and Oregon. 
 
 2 Indiana, Massachusetts, Mary- 'Georgia, 
 land, Michigan, Vermont. 
 
CHAP. XXIII. j PERSON AUTHORIZED TO SIGN NOTE. 395 
 
 completion of it, to satisfy the statute of frauds. The 
 maxim, qui facit per alium facit per se, is of universal ap- 
 plication. 
 
 In the early case of Sewall v. Fitch, 1 an agent made a 
 contract for the plaintiff with the defendant, for a quantity 
 of cut nails, to be manufactured. It was there held that 
 the rule as to a memorandum of a sale of goods made by 
 an agent having merely parol authority satisfies the statute 
 of frauds means a broker, or auctioneer, or other agent of 
 both parties, not the mere agent of the vendee, or the agent 
 of either party separately or singly. As the agent in that 
 case was not a broker, or auctioneer, he was held to be a 
 competent witness for the plaintiff. 
 
 The reasonable deduction from the cases is that, if there 
 is no concealment or fraud, and the parties are made aware 
 that the broker is acting for both buyer and seller, the act 
 is not incompatible with the broker's duty. 2 
 
 § 488. In Russel v. Oarswell 3 a note was made by an 
 agent, which was a special power and should have been 
 strictly pursued. Abner Carswell authorized the agent to 
 put his name to a note payable in six months, whereas he 
 signed a note at sixt} r days. Livingston, J., said : " The 
 note, then, as far as it concerned Abner Carswell, admitting 
 there was no revocation, was made without his authority. 
 His confession, after the suit was commenced, does not 
 alter the state of the case. It was merely that he had al- 
 lowed Davis Oarswell to put his name to a note. This must 
 have been the one of which the first witness spoke, which 
 was to be payable in six months." 
 
 The court below having found for the plaintiff, a new 
 trial was granted. 
 
 i8Cowen, 215; Bennetts. Hall, 3 2 Johns., 49, on the subject of 
 
 10 Johns., 364; Crookshank v. agency. See Fenn v. Harrison, 4 
 
 Burrell, 18 id., 58. See Lash v. Term R., 177; 3 id., 757; Ringuist 
 
 Parlin, 78 Mo. R., 397. v. Ditchell, 3 Esp. Cases, N. P., 64; 
 
 2 Hawkins v. Baker, 46 N. Y., Hicks v. Hawkins, 4 Esp. Cases, N. 
 
 666. P-, 114. 
 
396 sales. [chap. xxiii. 
 
 Where a party undertakes to do an act as the agent of 
 another, if he does not possess the authority which he as- 
 sumes, he will be personally responsible therefor to the per- 
 son so dealing with him. 1 
 
 § 489. In Wiener v. Whipple, 2 upon the sale therein 
 involved being made, the plaintiff, and by the father as 
 \ agent of the defendant, signed the following note or mem- 
 | orandum : 
 
 "Bought of Cass Whipple about three hundred bushels of 
 
 barley, at sixty-five cents for fifty pounds, to be delivered 
 
 by the 15th of September next. Paid on same $25. 
 
 " Waterloo, August &£, 1880. 
 
 "A. Whipple, 
 
 " S. M. Wienee." 
 
 After one load of barley had been delivered the plaintiff 
 refused to accept more on the ground that it was not of the 
 quality he bought. 
 
 Verdict for the plaintiff; the defendant appealed. 
 
 After citing several cases on the point, and stating that 
 the signature of the agent is good under the statute of 
 frauds, Taylor, J., says: "The signature of the agent in 
 such a case is deemed the signature of the principal, and is 
 a sufficient signing to take the case out of the statute." 
 
 § 490. One of the earliest cases illustrating the binding 
 force of an agent's memorandum is that of Bailey v. Cla- 
 son. 3 
 
 There, Clason employed one Townsend to buy a quantity 
 of rye for him. Accordingly Townsend bought of Bailev 
 & Yoorhees three thousand bushels of rye, at $1 per bushel. 
 At the time of closing the bargain he wrote in his mem- 
 orandum book, in the presence of Bailey & Yoorhees, the 
 Sallowing: "February 29th, bought for Isaac Clason, of 
 ailey & Voorhees, three thousand bushels of good mer- 
 
 1 Simmons v. More, 100 N. Y., 117-124; Noe v. Gregory, 7 Daly, 
 143; Baltzen v. Nioolay, 53 N. Y., 283. 
 467; White v. Madison, 26 N. Y, 2 53 Wis., 298. 
 
 3 14 Johns. R., 485. 
 
CHAP. XXIII.] PERSON AUTHORIZED TO SIGN NOTE. 397 
 
 charitable rye, deliverable from the 5th to the 15th of 
 April next, at $1 per bushel, and payable on delivery." 
 
 The terras of the sale and purchase had been previously 
 communicated to Cla'son, and approved by him. When the 
 time for delivery arrived Clason refused to accept and pay 
 for the rye. 
 
 One of the objections to the contract raised on the appeal 
 was that the contract was not valid under the statute of 
 frauds, because it was not signed by Bailey & Voorhees; 
 but the court held that the statute was satisfied. 
 
 § 491. So in the case of Batturs v. Sellers, 1 where a sale 
 of goods was made by a commission merchant, who deliv- 
 ered to the purchaser a bdl of parcels, stating him to be the 
 purchaser, it was held to be sufficient, although the name 
 of the principal did not appear in the writing. But where 
 a memorandum in writing was made by one Richards, a 
 salesman of the appellee, as follows: "T.F.Hall & Co., 
 88 South Charles St., Baltimore, Maryland," following 
 which was an itemized statement of the goods ordered and 
 the prices agreed to be paid for the same, but was not signed 
 by Richards nor by Hall, the contract was held not within 
 the statute of frauds. 2 
 
 § 492. The question frequently arises whether or not 
 the agent has bound himself, even though he describes him- 
 self as agent. 
 
 The recent case of Murphy v. Helmrich 3 is a good case 
 in point. The action was to recover the difference between 
 the contract and market price of one hundred shares of San 
 Francisco gas stock. 
 
 The defendants contended that there was no binding 
 memorandum ,in writing under the statute of frauds. The 
 
 15 Har. & Johns. R., 117; Good- absence of the parties, at his own 
 
 win v. Francis, L. R., 5 C. P., 295. instance, and for his own use and 
 
 ^McElroy v. Seevy, 61 Md., 390. convenience, it was held not to be 
 
 3 4 Pacific R., 958. Where an sufficient to take the case out of 
 
 agent of two parties signed a mem- the statute of frauds. Iu Noakes 
 
 orandum in his own name, in the v. Morey, 30 Ind., 103. 
 
398 SALES. [CHAP. XXIII. 
 
 defendants' promise, on the 15th of October, to take the 
 stock at a stipulated price, was verbal. 
 
 Upon the plaintiff sending word to the defendants that 
 the stock was ready to be delivered, they declined to pay, 
 but wrote : 
 
 " The purchaser of the one hundred shares of gas stock 
 has not made his appearance, and it looks very much as if 
 he was trying to back out. If you have accounted for the 
 stock already, we will, of course, make the deficiency good ; 
 if not, would advise to do nothing in the matter, as there 
 are to-day no buyers over ninety-four cents. 
 
 "Yours, etc., Hansen." 
 
 "Written on the back of the note was the following: "Will 
 call as soon as I get a chance." 
 
 Same day plaintiff received this note : 
 
 " I have not seen the purchaser of the one hundred shares- 
 of gas stock, but we guaranty that it is all right at ninety- 
 five and one-half, and you can account for it to your buyer 
 at that rate. But we shall probably only take the stock to- 
 morrow, unless we meet the party. Will that be in order? 
 
 " Yours, etc., Hansen." 
 
 Afterwards the defendants declined to take the stock, 
 but wrote that the plaintiff had better sell the stock. "But 
 we pannot understand why you should wish to sell it on our 
 account, as we did not buy it on our account," etc. 
 
 The plaintiff then sold the stock for $87.50 in the mar- 
 ket, and notified the defendants that he would hold them 
 for the deficiency. 
 
 The defendants set up in their answer that they acted 
 " solely as brokers and agents for others." 
 
 The court, McKee, J., said : " But their memoranda did 
 not disclose the name of any principal," nor was evidence 
 given showing for whom they acted. 
 
 Judgment in favor of the plaintiff was affirmed. 
 
 § 493. A broker, in the popular as well as in the legal 
 sense, is one who negotiates and concludes bargains for 
 another, for a commission or compensation. He is strictly 
 
CHAP. XXIII.] PERSON AUTHORIZED TO SIGN NOTE. 399 
 
 a mere middle-man or intermediate negotiator between the 
 several parties. He does not, ordinarily, act in his own 
 name, but in the name of those who employ him. He is an 
 agent employed to make bargains and contracts between 
 other persons in matters of trade, commerce or navigation. 
 
 § 494. If the contract which the broker makes between the 
 parties be a contract of purchase and sale, the property in 
 the goods, even if they belong to the supposed seller, may or 
 may not pass by the contract. The property may pass by 
 the contract at once, or may not pass until a subsequent 
 appropriation of goods has been made by the seller, and 
 has been assented to by the buyer. 
 
 Whatever may be the purport of the contract as between 
 the principals, in either case no effect goes out of the 
 broker. If he sign the contract, his signature has no effect 
 as his, but only because it is in contemplation of law the 
 signature of one or both of the principals. ISTo effect passes 
 out of the broker to change the property in the goods. The 
 property Changes either by a contract which is not his, or 
 by an appropriation and assent, either of which is his. 
 . . . He himself, considered as only a broker, has no 
 possession of the goods ; no power, actual or legal, of deter- 
 mining the destination of the goods; no power or authority 
 to determine whether the goods belong to buyer or seller, 
 or either; no power, legal or actual, to determine whether 
 the goods shall be delivered to the one or kept by the 
 other. 1 
 
 i Story on Agency, sees. 2-8, 30; 2 Chace, 19 Pick., 506; Blood v. 
 
 Kent, 4th ed., 622, note d; Worrall Hardy, 15 Maine, 61 ; McWhorter 
 
 v. Munn, 1 Seld. (N. Y.), 229; Bray v. McMahon, 10 Paige (N. Y.), 386; 
 
 v. Kittell, 1 Allen, 80; Taintor v. Pratt v. Turner, 6 Bing., 706; Har- 
 
 Prendergast, 3 Hill, 72; Salkirk v. vey v. Stevens, 43 Vt., 655; White 
 
 Cobb, 13 Gray, 313; Hinckley v. v. Crew, 16 Ga., 416; Horton v. 
 
 Arey! 27 Maine, 362; Shaw v. Fin- McCarty, 53 Maine, 394; Fare- 
 
 ney, 13 Met., 453; Hendersons, brother v. Simmons, 5 B. &Ald., 
 
 State, 50 Ind., 235; Newton v. 333; Eaynor v. Linthorne, 2 C. & 
 
 Bronson, 3 Kernan, 587; Bent v. P., 124, 544; Fowler v. Hollins, L. 
 
 Cobb, 9 Gray, 387 ; Smith v. Arnold, R., 7 Q. B., 616. 
 5 Mason, C. C. E., 414; Hawkins v. 
 
400 SALES. [chap. XXIII. 
 
 § 495. A broker is not ex vi termini agent for both 
 parties. The rule ordinarily laid down, that he is such 
 agent, rests upon a presumption of fact, which may be re- 
 butted by the particular circumstances of the case. 1 
 
 "Where, however, a broker is the lawfully authorized 
 agent of both parties, he may bind them by signing the 
 same contract on behalf of the buyer and seller. 2 
 
 § 49G. The general practice among brokers is, to make 
 an entry of the contract in a book and sign it, and then 
 to send a copy of it to each party, and, in general, the 
 " bought note " to the buyer, and " sold note " to the seller, 
 and these notes, duly delivered by the broker to the respect- 
 ive parties, have been held, if not the contract itself, proper 
 evidence of the contract, constituting a sufficient note in 
 writing to bind each part}^. 3 And this is so even though the 
 entry in the broker's book has never been signed by him. 
 The parties cannot then recede from the contract. But if 
 the broker deliver a different note of the contract to each 
 of the contracting parties, there is no binding contract. 
 
 In Hinde <ti. Whitehouse, 4 LordEllenborough, C. J., said, 
 in respect to sales of goods by brokers, that it has been 
 uniformily holden that a broker was an agent of both par- 
 ties ever since the case of Simon v. Metivier, 5 and it would 
 be dangerous to break in upon a rule which affects all sales 
 made by brokers acting between the parties buying and 
 selling. 
 
 § 497. In Ooddington v. Goddard, the broker, under 
 date, " Boston, December, 1850," made the following entry 
 or memorandum in his book of the transaction : 
 
 " 9. "W. "W. Goddard to T. B. Coddington & Co., two 
 
 1 2 Parsons on Contracts, 292; 3 Rucker v. Camnieyer, 1 Esp., 
 
 Bartlett v. Brunell, 4 Ad. & Ell., 105; Tremain v. Loder, 11 Ad. & 
 
 792; Dilworth v. Bostwiok, 31 E., 589; Gorm v. Aflats, 6 B. & C, 
 
 Super. Ct. R. (N. Y.), 587; Spyer 117. 
 
 v. Fisher, 37 Super. Ct. R. (N. Y.), i 7 East, 558. 
 
 99. 5 1 W. Bl., 599. 
 
 2 Blackburn's Treatise on Cont. of « 82 Mass.. 436. 
 Sales, Part 1. 
 
CHAP. XXIII.] PERSON AUTHORIZED TO SIGN NOTE. 401 
 
 hundred thousand pounds Chili pig copper, twenty-four and 
 one-fourth at nine months from delivery, f. o. b., packed 
 here for New York, seller paying freight and buyer paying 
 insurance to New York. To be ninety-six per cent, pure 
 copper, and paper satisfactory to seller." 
 
 No sale note, or letter relating to the sale or entry, was 
 sent by the broker to the defendant. The memorandum by 
 a broker is sufficient if the names of the parties to be 
 charged are properly inserted, either by themselves or by 
 some person duly authorized. The court said the purpose 
 of the statute is answered, " if the names of the parties 
 and the terms of the contract of sale are authenticated by 
 written evidence, and do not rest in parol proof." 
 
 § 498. In the recent leading, case of Newberry v. Wall, 1 
 as it was claimed, a sale was made by the plaintiff through 
 a broker, of "one thousand bales of Dowrah jute," to Will- 
 iam Wall's Sons, of which firm the defendant was the sur- 
 viving partner. The following memorandum was delivered : 
 
 "Daniel L. Stdrges, 
 "Hemp Broker, 111 Wall Street. 
 
 " JSTew York, May 25, 1870. 
 
 "Sold for Messrs. Newberry & Son to Messrs. Wm. 
 Wall's Sons, one thousand bales Dowrah jute, shipped at 
 London for New York per ship American Congress, in good 
 order and free from damage, at five and three-fourths cents 
 per pound, gold, cash, payable in fifteen days from delivery 
 alongside ship. Purchasers to advance gold for duties. 
 
 "Ekg. 1.20 per cent. 
 
 " Daniel L. Sturges, Broker." 
 
 The appeal was from a judgment of the general term of 
 the superior court of the city of New York, entered upon 
 an order made November 22, 1881, which affirmed a judg- 
 ment in favor of defendant, entered upon an order nonsuit- 
 ing the plaintiffs. This was the second time the case came 
 before the court of appeals. 
 
 184N. Y., 580; 65 id., 484. 
 26 
 
402 SALES. [chap. XXIII. 
 
 Earl, J., said : " In the prior case the commission of ap- 
 peals impliedly decided that, if the broker's note of the sale 
 had been delivered to the defendants as well as to the plaint- 
 iffs, there would have been a valid contract of sale within 
 the statute of frauds, and such is the law." After compar- 
 ing the evidence given in the former trial and not finding 
 it precisely the same, but sufficient to call for a different 
 disposition of the case, the court says : " There was no evi- 
 dence that the broker's note was not delivered to the de- 
 fendants, and the evidence did not show certainly that it 
 was so delivered, but we do not see how it can well be 
 doubted that there was evidence sufficient for submission to 
 the jury upon the question of such delivery." 
 
 § 499. The facts in Newberry v. Wall were, that in May, 
 1870, the plaintiffs received notice of a shipment to them of 
 the jute from London, and they employed the said broker 
 to sell the same. The defendants made an offer for the 
 jute, which offer was communicated to the plaintiffs, who 
 accepted it, whereupon the broker apprised the defendants 
 of the acceptance, and they replied, " all right." The broker 
 then made a memorandum of the contract in his book and 
 wrote two copies of the contract, which he signed, one of 
 which, called the broker's note, he sent to the plaintiffs, 
 which they actually received ; the other copy he sent to the 
 defendants, but as to its receipt by them there was no posi- 
 tive evidence. It was sent in his customary manner through 
 one of his clerks, a boy fifteen years of age, but the boy 
 was not produced, nor did the defendants deny that they 
 received it. 
 
 In view of the above facts the court said that "little ad- 
 ditional evidence was needed to authorize a jury to infer 
 that it did reach them. . . . The broker testified that 
 subsequently he had a conversation with one of the defend- 
 ants as to his purchase of the jute, and informed him that 
 he had executed the broker's note." On arrival of the jute 
 the plaintiffs called upon the defendants to pay the duties. 
 But instead of paying the duties defendants requested 
 
CHAP. XXIII.] PERSON AUTHORIZED TO SIGN NOTE. 403 
 
 plaintiffs to enter the goods at the custom-house in bond, 
 which they did, and they delivered to defendants an order 
 for the jute, and sent them an account specifjdng the quan- 
 tity in bales and pounds, debiting defendants for the pur- 
 chase price thereof, to which they made no objection. 
 After an arrangement had been made by the defendants 
 with the warehouseman for storing the jute, and after the 
 warehouseman commenced carting the jute, defendants in- 
 formed plaintiffs that they did not think it was such as they 
 had bought, and told them not to store it on their account. 
 The warehouseman stored it on account of whom it might 
 concern. 
 
 The defendants then sent to the plaintiffs a letter saying : 
 " On examination of the one thousand bales of jute we 
 bought of you we find the whole to be in most respects 
 different from any usually imported under that name ; . . 
 it is not fit for manufacturing purposes, totally unsalable 
 and unmerchantable, and hence we regret to inform you 
 that we reject it and give up the purchase." And they 
 finally rejected it upon the sole ground that " it was not 
 such jute as they had the right to demand under their con- 
 tract." 
 
 The plaintiff claimed that there was evidence tending to 
 show such a delivery and acceptance of the jute, or a por- 
 tion of it, as to satisfy the statute of frauds. But the 
 judge decided the case upon the main ground that the evi-. 
 dence was " sufficient to authorize the inference by the 
 jury that they had received the broker's note sent to them, 
 and thereby considered themselves under a valid contract. 
 The judge presiding at the trial therefore erred in nonsuit- 
 ing the plaintiffs." ' 
 
 All the judges concurred, except Folger, 0. J., who, be- 
 ing in doubt, did not vote; Rapallo, J., absent. 
 
 1 See also, in regard to the ques- Tower v. Tudhope, 37 U. C. Q. B., 
 
 tions involved in such cases, Pink- 200; Phillips v. Ocmulgee Mills, 55 
 
 ham v. Mattox, 53 N. H., 604; Dal- Ga., 633. 
 lard v. Potts, 6 Allen (N. B.), 443; 
 
404 SALES. [chap, xxiii. 
 
 § 500. A broker's memorandum in the purchase of rail- 
 road shares has been held binding upon the parties although. 
 the name of his principal did not appear in the contract. 
 
 Thus, Dykers and Alstyne v. TWnsend ' was an action to 
 recover damages for the refusal of the defendant to re- 
 ceive and pay for eleven hundred shares of the capital 
 stock of the New York & Erie Kailroad Company, agreed 
 to be purchased under three several contracts, as follows: 
 
 "New York, May 2, 1854. 
 
 "I have purchased of Dykers, Alstyne & Co. five hun- 
 dred shares of the New York & Erie Eailroad Company, 
 at seventy (70) per cent., and deliverable in sixty days, 
 buyer's option, with interest at the rate of six per cent, per 
 annum. W. S. Hott." 
 
 It was proved on the trial that Hoyt & Brown were 
 brokers, and acted as the agents of the defendant in mak- 
 ing the contract. On the trial, the defendant moved to 
 dismiss the complaint on the ground that the contracts were 
 signed only by B. and H. in their own names; that the 
 name of the defendant nowhere appeared upon them ; that 
 parol evidence could not be introduced to show that the 
 defendant was the person for whose benefit the contracts 
 were made. 
 
 On appeal, by the defendant, the judgment in favor of 
 the plaintiffs was affirmed by the general term. 
 
 § 501. But in Dennison v. Carnahan, 2 as the facts ap- 
 peared in the case, a broker, acting for both parties, pur- 
 chased a lot of sugar from Dennison for Carnahan, and 
 made an entry in his book, but which was not signed by 
 either party, as follows : 
 
 " New Yoek, August 9, 1850. 
 
 "For M. K. Carnahan, to C. & L. Dennison, one hundred 
 and fifty barrels sugar, at five and five-eighths; four 
 months." 
 
 >24 N. Y., 57. But see Knight 21 B. D. Smith, 144. 
 v. Barber, 2 C. & K., 333; 61 C. L. 
 R., 331. 
 
CHAP. XXIII.] PERSON AUTHORIZED TO SIGN NOTE. 405 
 
 The co'urt held that this was not a sufficient memorandum 
 within the statute of frauds. 
 
 § 502. One of the earliest cases involving the question of 
 form and sufficiency of a broker's memorandum under the 
 statute of frauds is Bailey v. Ogden. 1 Kent, Ch. J. (after- 
 wards chancellor), delivered the opinion of the court. 
 
 The fifteenth section of the statute of frauds of New 
 York was then the same as section 17 of the English stat- 
 ute. The facts were, that, on December 14, 1804, one 
 Huguet, a broker, acting for the defendants, negotiated 
 with the plaintiffs for the purchase of a large lot of sugar 
 imported by the plaintiffs. The quantity and price were 
 agreed upon; the payment was to be in promissory notes 
 at sixty and ninet}' days, with satisfactory indorsers. The 
 broker, Huguet, assumed that the terms would be satisfac- 
 tory to the defendants, but could not definitively know till 
 J. Ogden, one of the defendants, returned to town. One 
 of the plaintiffs made a memorandum of the bargain in a 
 book. Huguet requested the plaintiffs to allow the sugars 
 to remain in their store, the storage thereon to be paid after 
 the expiration of the month, which was agreed to. 
 
 The following day the plaintiffs read to Huguet the 
 memorandum which they had made the day before, as fol- 
 lows. 
 
 " lJfth December. 
 
 " Sold Huguet, for J. Ogden & Co., notes with approved 
 
 indorser, boxes white, do. brown Havana 
 
 sugars, at twelve and one-half for brown and sixteen and^ 
 one-quarter for white, payable at sixty and ninety days; 
 debenture we will receive in part payment." 
 
 Huguet pronounced this correct, but in regard to fhe 
 " indorser " said the plaintiffs could fix that with J. Ogden 
 on his return. 
 
 The broker, Huguet, wrote with his pencil in his memo- 
 randum book the following : 
 
 1 3 Johnson's E., 399-421 (1808). 
 
406 SALES. [chap. XXIII. 
 
 " lJ/th December. 
 "J". Ogden & Co., Bailey & Bogert, 
 
 Brown 12* ) . . d ninet d 
 White 16J) J 
 Debenture part pay." 
 
 Huguet then went to the defendants and told them that 
 the plaintiffs demanded an indorser, and was told that they 
 would have to wait until J. Ogden returned. 
 
 A fire occurred on the night of December 18, 1804, en- 
 tirely destroying the sugar. Upon the return of J. Ogden, 
 after the fire, he refused to give an indorser. Seven days 
 after that date the plaintiffs delivered a bill of the sugar to 
 the defendants, and demanded notes for the same, with in- 
 dorser, which were refused. 
 
 The action was laid in assumpsit. 
 
 On the trial a verdict was rendered for the defendants, 
 and the plaintiffs appealed. 
 
 The principal question raised on the appeal was, whether 
 there was a memorandum in writing, binding upon the de- 
 fendants within the meaning of the statute of frauds. 
 
 The memoranda of fclie transaction were comprised in 
 the entry of the sale made by one of the plaintiffs in a book, 
 and that made by Huguet, the broker. It will be observed 
 that there was no memorandum signed by the parties to be 
 charged. In the course of his opinion, Kent, Oh. J., says : 
 " The numerous cases admitting an agreement to be valid 
 within the statute, if signed by one party only, are all of 
 them cases in which the agreement was signed by the party 
 against whom the performance was sought. Some of the 
 cases' arose under the fourth, and others under the seven- 
 teenth, section of the English statute ; but the words are, 
 in this respect, similar, and require the same construction. 
 
 " It has, however, been said that there would be a want 
 of mutuality if the plaintiffs in this case were bound by their 
 entry, and the defendants should not be. The same diffi- 
 culty has occurred in other cases ; and Lord Eedesdale, in 
 
CHAP. XXIII. J PEKS0N AUTHORIZED TO SIGN NOTE. 407 
 
 Lawrence v. Butler, 1 felt it so strongly, he observed, that to 
 enforce every agreement signed by one party only, against 
 such party, would be to make the statute really a statute of 
 frauds, and that there was no late case in which one party 
 only was bound by the agreement, where equity had decreed 
 performance, though he admitted the import of the statute 
 to be that no agreement should be in force but when signed 
 by the party to be charged." He further says that " the 
 agent of the defendants had authority to make the pur- 
 chase, and any memorandum made by him respecting the 
 purchase would be sufficient, but that the memorandum by 
 him was too vague and indefinite to be a compliance with 
 the statute." 
 
 He then proceeds to state the law governing the form 
 and substance of a memorandum which the statute of frauds 
 requires, and says it must state the contract with reasonable 
 certainty, so that the substance of it can be made to appear 
 and be understood from the writing itself, without having 
 recourse to parol proof. This is the meaning and substance 
 of the statute, and without which the beneficial ends of it 
 would be entirely defeated. 2 
 
 1 1 Schoaler & Lefroy, 30. 2 Champion v. Plummer, 1 Bos. 
 
 & Pul., 252. 
 
CHAPTER XXIV. 
 
 OF SALES BY BOUGHT AND SOLD NOTES. 
 
 § 503. Contracts by brokers ; bought and sold notes. 
 
 504. Does the bought and sold note constitute the contract between 
 
 the parties. 
 
 505. "Where there is a variance between the notes delivered to the 
 
 parties. 
 
 506. Construction of broker's note ; Butler v. Thomson. 
 
 507. The same case ; appeal to the supreme court of the United States, 
 
 reversed, opinion by Mr. Justice Hunt. 
 
 508. Where a diversity appears between the bought and sold note ; 
 
 Sivewright v. Archibald. 
 
 509. Validity of sale-notes discussed ; Greeley-Burnham Grocer Com- 
 
 pany v. Capen. 
 
 510. As to sufficiency of note, where the bought-note is not signed 
 
 by the broker ; Sale v. Darragh. 
 
 511. The same case; concerning acceptance in such transactions. 
 
 512. Where a part of the goods are delivered under a sale-note. 
 
 513. Delivery of bought and sold notes ; a question for the jury. 
 
 514. Certain deductions. 
 
 § 503. A large proportion of the commercial business of 
 the community is done through the instrumentality of 
 brokers. And bought and sold notes, as they are called, are 
 frequently used, though no particular form seems to be re- 
 quired in their use. 
 
 There seem to be four kinds used, as in effect given by 
 Mr. Benjamin : First, where the one note reads, " Sold for 
 A. B. to C. D. ; " and the other, " Bought for C. D. of A. B. ; " 
 or in substance those words, each containing the terms of 
 the bargain. 
 
 Second, where the parties' names are not mentioned; 
 the form being, "Bought for 0. D.," and " Sold for A. B." 
 
 Third, where the broker appears to be principal and 
 gives to the buyer, in substance, " sold to you by me," or 
 words to that effect. 
 
CHAP. XXIV.] BOUGHT AND SOLD NOTES. 409 
 
 Fourth, where he professes to sign as broker, but is really 
 a principal, and his signature does not bind the other par- 
 ties. 1 
 
 It is well settled that neither party is bound if the broker 
 does not • sign the same contract for each party for whom 
 he acts. In default of so doing there is no valid contract. 2 
 Neither party is bound. 
 
 But it is held that a contract signed by the vendee and 
 delivered by the broker to the vendor, although it differ 
 from the sold-note which the broker delivers to the vendee, 
 is valid and binding upon the vendee. 3 Such a transaction 
 is relieved from the necessarily strict rule applicable to the 
 acts of a broker as such. 
 
 The entry in the broker's book is, properly speaking, 
 the original, and ought to be signed by him. The bought 
 and sold notes delivered to the parties ought to be copies 
 of it. 4 
 
 § 504. Bought and sold notes, as contracts, are ordina- 
 rily made by the broker at' the time of the making of the 
 contract, and before an entry is made in the agent's sale- 
 book. Lord Ellen borough, in Hinde v. Whitehouse, 5 says 
 that, in all sales " made by brokers acting between the 
 parties buying and selling, the memorandum in the broker's 
 book, and the bought and sold notes transcribed therefrom, ■ 
 and delivered to the buyers and sellers respectively, have 
 been hoi den a sufficient compliance with the statute of 
 frauds." 
 
 But it would seem that if the broker is a special agent 
 for one of the parties to the transaction, a different rule 
 
 1 Benjamin on Sales, 276 ; Wilder serves that " a valid contract may 
 v. Cowles, 100 Mass., 487; Tony v. probably be made by perfect notes 
 Holmes, 10 Conn., 500; Merrill v. signed by the broker, and delivered 
 Wilson, 6Ind.,426. to the parties, although the book 
 
 2 Cumming v. Roebuck, Holt, be not signed, but if the notes are 
 172. imperfect, an unsigned entry in 
 
 iRowei). Osborne, 1 Stark., 140. the book will not supply the de- 
 < Grant v. Fletcher, 5 B. & C, feet." 
 436. In this case Abbott, C. J., ob- 5 7 East, 558. 
 
410 SALES. [CHAP. XXIV. 
 
 would apply. 1 In Heyman v. Neale, 2 Lord Ellenborough 
 distinctty lays down the proposition that the bought and 
 sold note does not constitute the contract. " What is called 
 the bought and sold note is only a copy of the entry in the 
 broker's book, which would be valid and binding although 
 no bought or sold note was ever sent to the vendor or pur- 
 chaser." And the judgment in Sivewright v. Archibald, 3 
 although in contradiction of Goom v. Afflalo, 4 and Thornton 
 v. Meux, 5 seems to be of a great deal of importance and 
 weight. 
 
 In Hawes v. Forster, 6 Denman, 0. J., says: "I am of 
 opinion that the plaintiffs have proved a contract by produc- 
 ing the bought-note. . . . It is not shown that the sold- 
 note delivered to the defendants differed from the bought- 
 note delivered to the plaintiffs. Had that been shown to be 
 the case, it would have been very material ; but, in the ab- 
 sence of all proof of that nature, I am clearly of opinion 
 that / must look at the bought-note, and to that alone, as the 
 evidence of the terms of the contract." Where the bought 
 and sold notes differ, the evidence of the contract fails. 
 The cases are distinguished in this. 
 
 § 505. It is said by a writer on contracts, that, " where 
 the broker delivers different notes of the contract to each of 
 the contracting parties, and there is no signed entry in his 
 books to cure the discrepancy, there is no valid bargain at 
 all. There is no proof of the assent of the parties to the 
 same terms. No common understanding." 7 Thus, in Moore 
 v. Campbell, 8 where the broker was the agent of the plaint- 
 iff only, and the plaintiff claimed that the memorandum 
 signed by the defendant was the contract, the court said 
 
 i Coddington u Goddard,16Gray, «1 Moo. & Rob., 368. But an 
 
 436; Megaw v. Molloy, 2 L. R. Ir., immaterial variance will not avoid 
 
 530; MoMullen v. Helberg, 4 id., a contract. Maclean v. Dunn, 1 
 
 35. Moo. & Pi, 761. See Parton v. 
 
 n Camp., 337. Crofts, 16 C. B. N. S., 11; 33 L. J. 
 
 U7Q. B., 103. C. P., 189. 
 
 * 6 B. & C, 117. 7 1 Pars, on Cont>> 544 
 
 *M. &M., 43. siOExch., 323. 
 
■CHAP. XXIV. J BOUGHT AND SOLD NOTES. 411 
 
 the two memoranda must be considered together, and that, 
 as they differed in material points, there was no evidence of 
 any mutual agreement. 
 
 So, where one of the memoranda mentioned " Biga Bhine 
 hemp," and the other " St. Petersburg clean hemp," it was 
 held that there was no binding contract. 1 
 
 § 506. The point involved in Butler v. Thomson 2 was 
 whether a certain paper writing signed by a broker was a 
 memorandum or sale-note sufficient to satisfy the statute of 
 frauds. 
 
 It appeared on the trial that "White & Hazard, metal 
 brokers, were employed by the plaintiff to sell for him a 
 large quantity of sheet iron, to arrive from Bussia. The 
 brokers offered the iron to the defendants verbally, at a 
 price named, and the defendants verbally accepted it at that 
 price. 
 
 The brokers then signed two papers, in the same words, 
 as follows : 
 
 "New Toek, July 10, 1867. 
 
 " Sold for Messrs. Butler & Co., Boston, to Messrs. A. A. 
 Thomson & Co., of New York, seven hundred and five 
 (705) packs first quality Eussian sheet iron, to arrive at New 
 York, at twelve and three-quarter (12f) cents per pound, 
 gold; cash; actual tare. Iron due about Sept. 1, '67. 
 
 " White & Hazaed, Brokers." 
 
 Below was a memorandum of the number of packs of 
 each of eight different sizes, numbers or marks. One of 
 these memorandum notes so signed was delivered by the 
 brokers to the plaintiff, and one to the defendants. 
 
 This paper was the only written contract between the 
 parties. 
 
 The court decided that the two papers did not constitute 
 a written contract of purchase and sale, within the statute 
 
 1 Thornton v. Kempster, 5 Taunt. , be material. Bold v. Eayner, 1 M. 
 786. If the meaning be the same, & W., 343. 
 
 a difference in language will not 211 Blatoh. C. C. R., 534; 92 U. 
 
 S., 412. 
 
4-12 SALES. [CHAP. XXIV. 
 
 of frauds of the state of New York, and gave judgment for 
 the defendant. Blatchford, J., after stating the facts, and 
 quoting the New York statute of frauds, says : " The con- 
 tract of purchase by the defendants is distinct from the con- 
 tract of sale by the plaintiff. The plaintiff might very well 
 have bound himself by a contract of sale, in writing, and 
 subscribed as required, so as to have made himself liable 
 thereon to the defendants, while the defendants did not 
 bind themselves by a contract of purchase in writing, and 
 subscribed as required, so as to have made themselves liable 
 thereon to the plaintiff." 
 
 After citing Grant v. Naylor l and Salmon Falls Manu- 
 facturing Company v. Goddard, 2 the court denied the motion 
 of the plaintiff for a new trial. 
 
 § 507. The above case went to the supreme court of the 
 United States, 3 and the judgment of the circuit court for the 
 southern district of New York was reversed, and the cause 
 remanded to the circuit court for a new trial. 
 
 Mr. Justice Hunt, after stating the facts in the case; the 
 statute of frauds of New York, as to the sale of goods for 
 the price of $50 or more ; and after examining the agree- 
 ment of many authorities, English and American, says: 
 " Here both have signed the paper, and if a contract is cre- 
 ated, it is a mutual one. Both are liable, or neither. 
 
 " Under these authorities it seems clear that there can be 
 no sale unless there is a purchase, as there can be no pur- 
 chase unless there be a sale. 
 
 " When, therefore, the parties mutually certify and declare 
 in writing that Butler & Co. have sold a certain amount 
 of iron to Thomson & Co. at a price named, there is in- 
 cluded therein a certificate and declaration that Thomson 
 & Co. have bought the iron at that price." 
 
 Touching the decision of the circuit court, the learned 
 judge says: "The argument on which the decision below- 
 of the case we are considering, was based, is that the con, 
 
 1 4 Cranch, 224. s g 3 U# S>j 413 . s Centi Law Joul .^ 
 
 2 14 Howard (U. S.), 446. 383. 
 
OHAP. XXIV.] BOUGHT AND SOLD XoTKS. 413 
 
 tract of sale is distinct from the contract of purchase; that 
 to charge the purchaser the suit should be brought upon 
 the bought-note, and that the purchaser can only be held 
 where his agent has signed and delivered to the other 
 party a bought-note, that is, an instrument expressing that 
 he has bought and will pay for the articles specified. Mr. 
 Justice Patteson [referring to the opinion of the learned 
 justice in Sivewright v. Archibald, 6 Eng. L. & Eq., 2S0] 
 answers this by the statement that the bought-note is always 
 delivered to the buyer, and the sold-note to the seller. • 
 
 " The plaintiff here has the signature of both parties, and 
 the counterpart delivered to him, and on which he brings 
 his suit, is, according to Justice Patteson, the proper one 
 for that purpose, that is, the sold-note." 
 
 After saying that Justice v. Lang 1 did not conflict with 
 these views, and that the contract was perfect and obliga- 
 tory upon both parties, the court reversed the judgment of 
 the circuit court. 
 
 § 508. In Sivewright v. Archibald 2 the subject of bought 
 and sold notes is elaborately considered. In that case, as it 
 appeared, there was a discrepancy between the bought and 
 the sold notes. The sold-note was for a sale to the defend- 
 ant of " 500 tons Messrs. Dunlop, Wilson & Co.'s pig-iron." 
 The bought-note was for " 500 tons of Scotch pig-iron." In 
 other respects the bought and sold notes were complete. It 
 was held that such diversity between the bought and sold 
 notes avoided the contract; and also, that the subject of the 
 contract was not agreed upon between the parties. There 
 was no entry in the sale-book of the broker signed by him. 
 It appeared in that case, and the circumstance is commented 
 on by Mr. Justice Patteson, that the practice is to deliver 
 the bought-note to the buyer, and the sold-note to the seller. 
 He says: "Each of them, in the language used, purports to 
 be a representation by the broker, to the person to whom 
 it is delivered, of what he, the broker, has done as agent 
 for that person. Surely, the bought-note, delivered to the 
 
 1 42 N. Y., 493. 2 6 Eng. Law & Eq. R., 286. 
 
414 SALES. [CHAP. XXIV. 
 
 buyer, cannot be said to be the memorandum of the con- 
 tract signed by the buyer's agent, in order that he may be 
 bound thereby ; for then it would have been delivered to 
 the seller, not to the buyer, and vice versa as to the sold- 
 note." 
 
 It could not be determined which should prevail over 
 the other. The court was divided. Instead, however, of 
 making the rule absolute to enter the verdict for the de- 
 fendant, a nonsuit was entered to give the plaintiff an 
 opportunity to bring a fresh action. His lordship said, as 
 there was no signed memorandum in the broker's book, the 
 notes, or one of them, " must be the memorandum in writing 
 signed by the defendant's agent, or there is none at all, and 
 the statute will not be satisfied. If the bought and sold 
 notes together be the memorandum, and they differ materi- 
 ally, it is plain that there is no memorandum." 
 
 The above case, and that of Butler v. Thomson, are deemed 
 authoritative cases on this general question. 1 
 
 § 509. The learned judge, in G-reeley-Burnham Grocer 
 Company v. Capen, 2 lucidly and ably discusses the suffi- 
 ciency of certain " sold -notes " to take the case out of the 
 statute of frauds. 
 
 Several cases were tried at the circuit, involving identical 
 questions, and this appeal was taken as a test to determine 
 whether the judgments should stand. 
 
 The actions were for the non-delivery of goods alleged 
 to have been purchased of the defendant by the plaintiffs 
 and their assignors, through S. B. Pike & Co., his agents 
 for the sale of his goods. 
 
 The sale-notes were in effect as follows : 
 
 " St. Louis, October 30, 1885. 
 
 " Sold to G. A. Eckerle & Co., for acct. of S. B. Pike & 
 Co., twenty-five cases Am. J sardines, at $6 f. o. b. Port- 
 land. . . . Terms of sale, cash on arrival, less three 
 per cent. Shipping directions, cheapest. 
 
 " Wm. T. Gould, Merchandise Broker." 
 
 1 But see Howell v. Maas, 13 Daly, 222. « 23 Mo. App. R., 801. 
 
CHAP. XXIV. J BOUGHT AND SOLD NOTES. 415 
 
 The appellate court sustained the holding of the court 
 below, that the memoranda by which the contracts were 
 evidenced were sufficient to take the case out of the statute 
 of frauds. 
 
 Thompson, J., further says : " The objection that the 
 time of delivery is not stated in this sold-note seems imma- 
 terial, because the law would annex the condition of de- 
 livery within a reasonable time under the facts of the case, 
 in conformity with the manifest understanding of the par- 
 ties." 
 
 A sale was also made, as appears in the case, without a 
 sale-note having been given, but it was shown that the 
 terms of the sale were reported by S. B. Pike & Co. to the 
 defendant, and the reply of the defendant thereto was 
 enough to show that he understood the contract. 
 
 " The memoranda, comprising the sale-notes, the corre- 
 spondence by letter and telegram, relating as they do to 
 the same subject-matter, make the terms of the sale," says 
 the learned judge, " entirely clear without resort to parol 
 evidence, and take the case out of the letter and policy of 
 the statute of frauds." 1 
 
 As to the power of Pike & Co. to act as the agents of 
 the defendant, the court reviews at great length the corre- 
 spondence, letters and telegrams, and the phase which they 
 bear upon that question, and concludes that such agency 
 was sufficiently proved at the trial and affirm the judg- 
 ment of the court below. 
 
 § 510. The case of Sale v. D.arragh 2 is also interesting, 
 involving as it does the question of a broker's acceptance of 
 goods. 
 
 There, the plaintiff, through a broker, sold to the defend- 
 ant certain hemp, upon the following sale-note: 
 
 " New York, August 16, 1850. 
 
 " Sold for account of Mr. William A. Sale, Jr., to Mr. John 
 
 1 See Heideman v. "Wolfestien, 12 78 Mo., 391; O'Neil v. Crain, 67 
 Mo. App., 366; Moore v. Mount- Mo., 250. 
 castle, 61 Mo., 424; Lash v. Parlin, 2 2 Hilton, C. P., 184. 
 
416 SALES. [chap. XXIV. 
 
 Darragh: bales jute hemp, at $80 per ton; six months. 
 
 This hemp is to remain in store at the expense and risk of 
 the seller, for the expiration of the first month; thereafter 
 at the expense and risk of the purchaser. Mr. Darragh is to 
 pay for this hemp as he may want to take it away, at the 
 rate of eight per cent, per annum discount. Tare, six 
 pounds per bale. " John E. Fokbes & Bbo. 
 
 " Daniel L. Sturges. 
 "Broker in Fruits, Spices, Salad Oils, Hemp and Merchan- 
 dise generally. 103 Wall Street." 
 
 This memorandum or sale-note was delivered by Sturges, 
 a clerk of the Messrs. Forbes, and by whom the sale was 
 made, to the plaintiff. No bought-note was signed by the 
 broker. 
 
 Although no number was mentioned in the sale-note, 
 three hundred and fiftj'-six bales were sold. The bales 
 were delivered as the defendant required, and paid for as 
 taken away; the deliveries were between August, 1850, and 
 January, 1852. The weight was marked on the bales be- 
 fore the sale. 
 
 As the defendant refused to take the rest (thirty-three 
 bales), alleging them to be damaged, the plaintiff sold the 
 same at a reduced price. . 
 
 The defendant gave no special authority to the plaintiff 
 to sell these bales on his account, nor did the plaintiff give 
 the defendant any notice of his intention so to sell them. 
 The plaintiff's loss was $535, to recover which this action 
 was brought. 
 
 The referee found that there was no sufficient note or 
 memorandum of the contract, nor such an acceptance and 
 receipt of part of the hemp required by the statute of 
 frauds, as to charge the defendant as purchaser of the 
 whole. On the latter question the referee expressed doubt. 
 
 § 511. Although in his decision he states that, prior to 
 1830, the statute of New York was silent as to the time 
 when a memorandum should be made, or a part of the 
 goods accepted, or part of the purchase money paid, and 
 
CHAP. XXTV.] BOUGHT AND SOLD NOTES. 417 
 
 concedes that a subsequent delivery and acceptance would 
 be equally efficient as if made at the time of the contract, 
 yet the referee decides that there was not such a delivery 
 and acceptance of part as contemplated by the statute. He 
 evidently rested his opinion upon the case of Seymour v. 
 Davis, 1 where it is held that a delivery and acceptance of a 
 part of the goods must take place at the time of the making 
 of the contract. " This decision," says the court in Sale v. 
 Darragh, " was founded in a mistake." The justice, by a 
 singular oversight, did not observe that the provision of the 
 Revised Statutes as to time, touching the sale of goods, is 
 confined to the subject of part payment, and does not refer 
 to acceptance and receipt. 
 
 Daly, C. J., substantially says that, if the note or memo- 
 randum was insufficient under the statute, the evidence 
 established an agreement for the sale of three hundred and 
 fifty-six bales of jute hemp, upon the terms stated in the 
 writing, which was afterwards consummated and became a 
 valid contract by the delivery and acceptance of a part of 
 the goods. 
 
 In regard to the sale-note not stating the number of bales 
 he says: " Where it is apparent upon the face of the instru- 
 ment that something is contemplated and agreed upon by 
 parties, which they have not distinctly defined, or expressed 
 with sufficient clearness, parol proof, connecting the instru- 
 ment with its subject-matter, is always allowable to show 
 what the parties intended and meant." 
 
 § 512. The case of Cole v. Swanston 2 involved the ques- 
 tion of part delivery under a sale-note. The plaintiff, 
 through his agent Dore, sold to the defendants certain lum- 
 ber on the following sale-note : 
 
 " Sold Messrs. Swanston & Taylor fifty thousand three 
 hundred and twenty -five feet lumber ex Duchess Clarence, 
 for account Captain Cole, at $150 per thousand. 
 
 "81st December, 18$. M. Doeb." 
 
 Of this lumber twelve thousand nine hundred and fifty- 
 
 1 2 Sandf. S. C. R., 245. 2 1 Gal., 51. 
 
 27 
 
418 SALES. [CHAP. XXIV. 
 
 eight feet were delivered ; the balance, seventeen thousand 
 six hundred and forty-nine feet, was sold by Cole on ac- 
 count, as was claimed, of the purchasers, at the price of 
 $760.72. That constituted the quantity on board the said 
 vessel, and all that Cole owned. So that at the time of the 
 sale the plaintiff only had thirty thousand six hundred and 
 seven feet instead of fifty thousand three hundred and 
 twenty-five feet, the quantity called for by the note. 
 
 No time or place was agreed upon for the delivery when 
 the sale-note was made, although the course of conduct of 
 both parties showed that it was contemplated that the 
 plaintiff should deliver the lumber to the defendants in 
 lighters at the side of the vessel; and the twelve thousand 
 nine hundred and fifty-eight feet were so delivered. 
 
 The court of first instance, upon the referee's report, gave 
 the plaintiff judgment for the fifty thousand three hundred 
 and twenty-five feet at $150 per thousand, after deducting 
 $650.05, the amount of the net proceeds of that portion 
 which had been sold by the plaintiff at auction. 
 
 Bennett, J., said: "The delivery of the lumber and the 
 payment of the purchase money are by the contract con- 
 current acts. Neither party can maintain an action against 
 the other for non-performance, without showing a readiness 
 and willingness to perform on his part." x The plaintiff was 
 unable to perform his part of the contract, and, therefore, 
 could not complain that the defendants were unable to per- 
 form their part. 
 
 The court decided that the plaintiff was entitled to re- 
 cover the stipulated price for the quantity actually deliv- 
 ered, deducting therefrom the damages sustained by the 
 defendants, by reason of the non-delivery of all the lumber. 
 
 § 513. Where a broker's note of a sale made by him 
 has been delivered to both the buyer and seller, it has been 
 held to constitute a valid contract of sale within the mean- 
 ing of the statute of frauds. The question, however, as to 
 
 JChitty on Cont., 446, 7th Am. ed. ; Banker v. Hoyt, 18 Pick., 457; 
 Story on Cont., § 845. 
 
CHAP. XXIV.] BOUGHT AND SOLD NOTES. 419 
 
 ■whether or not there has been a delivery of the sale-note, 
 or a memorandum of the sale to the buyer, is a question 
 of fact which is ordinarily submitted to and passed upon 
 by the jury. The courts are uniformly cautious, under the 
 principles of our jurisprudence, and properly so, in trench- 
 ing upon or interfering with the province of the jury. 1 
 
 § 514. Upon an examination of Mr. Benjamin's excel- 
 lent treatise on the law of sales, 2 it will be seen that he 
 draws several deductions from the English decisions on the 
 subject of bought and sold notes. 
 
 In brief as follows : 1. The broker's signed entry in his 
 book constitutes the contract. 2. The bought and sold 
 notes do not constitute the contract. 3. But the bought 
 and sold notes, if they show a complete contract, satisfy 
 the statute of frauds. 4. Either note will satisfy the stat- 
 ute if there be no material variance between its entry and 
 notes. 5. One note only being put in evidence, the de- 
 fendant may put in the other note or the entry in the 
 book to prove a variance. 6. If the bought and sold notes 
 correspond, but they vary from the entry, it becomes a 
 question for the jury to say whether the acceptance of the 
 notes, by the parties, constitutes evidence of a new con- 
 tract. 1. The same rule governs where the bargain is 
 by correspondence, and there is shown to be a variance be- 
 tween such agreement and the bought and sold notes ; and 
 8. Where the bought and sold notes vary, and there is no 
 signed entry in the broker's book nor other writing show- 
 ing the terms of the bargain, there is no valid contract. 
 
 1 First National Bank of Spring- 238; Goom v. Afflalo, 6 B. & C, 
 
 field v. Dana, 79 N. Y., 109; Low 117; Trueman v. Locler, 11 A. & E., 
 
 v. Hall, 47 id., 104; Thomas v. 589; 39 C. L. R., 319. The broker's 
 
 Lumley, 50 How. Pr., 108; Cook v. authority may be revoked at any 
 
 New York Central E. E. Co., 3 time before he has signed the note 
 
 Keyes, 476 ; Scofield v. Hernandez, in behalf of the party revoking. 
 
 47 N. Y., 313; Labor v. Koflin, 4 Warwick v. Slade, 3 Camp., 127. 
 
 N. Y, 547; Dickenson v. Silwot, 1 As to a material alteration of a 
 
 Stark., 128; 2 id., 57; Grant v. note, see Mollett v. Wackerbarth, 
 
 Fletcher, 5 B. & C, 436; Gale v. 5 C. B., 181. 
 
 Wells, 1 C. & P., 388; 12 C. L. E„ 2 g§ 294-301. 
 
OHAPTEK XXV. 
 
 OF AUCTION SALES AND AUCTIONEERS. 
 
 | 515. Origin and meaning of the word auction. 
 
 516. What is an auctioneer. 
 
 517. Statute of certain states as to auction sales; agency of auc- 
 
 tioneer. 
 
 518. As to such sales being within the statute of frauds. 
 
 519. Same subject ; description of an auction ; Davis v. Eobertson. 
 
 520. Early Massachusetts case on auction sales. 
 
 521. Auction sales within the statute of frauds ; Hicks v. Whitmore. 
 
 522. The auctioneer as an agent. 
 
 523. Memorandum to be made by the auctioneer. 
 
 524. The auctioneer's memorandum in his sale-book must contain 
 
 all the essentials under the statute. 
 
 525. A clear designation of the bidder is sufficient identification, al- 
 
 though his name be incorrectly written. 
 626. Where must the memorandum be made ; construction of the 
 statute ; opinion of Chief Justice Savage. 
 
 527. Auctioneers are liable for gross negligence in the performance 
 
 of their duties. 
 
 528. Auctioneer must make the entry in his sale-book at the time of 
 
 the sale, eo instanti; Craig v. Godfrey. » 
 
 529. A sale by sample must be so entered by the auctioneer. 
 
 530. Reason why the entry must be made at the time of the sale. 
 
 531. The words " at the time " are strictly construed. 
 
 532. Interpretation of the rule ; Smith v. Arnold. 
 
 533. The same subject continued. 
 
 534. When the vendee will not be bound. 
 
 535. Auctioneer's clerk may sign memorandum and bind the parties. 
 
 536. Example ; Johnson v. Buck. 
 
 537. Clerk to call out the name of purchaser. 
 
 538. Where a sale extends over a day, entry under same caption suf- 
 
 ficient; Price v. Duvin. 
 
 539. Auctioneer may maintain an action ; clerk deemed the agent 
 
 of the buyer. 
 
 540. Possession and interest of auctioneer and as agent. 
 
 541. Each parcel bought at an auction, a separate contract, except 
 
 in certain cases. 
 
 542. Example where several parcels were bought ; Mills v. Hunt. 
 
CHAP. XXV.] AUCTION SALES AND ATJCTIONEEBS. 421 
 
 § 543. As to description designating the seller. 
 644. The word " Do." underneath the name of a buyer, held not a 
 sufficient description. 
 
 545. Where the memorandum is deficient in not naming the vendor, 
 
 his subsequent letters sufficient to bind the contract. 
 
 546. Of an undisclosed principal in an auction sale. 
 
 547. "Where the auctioneer enters his. own name, without any refer- 
 
 ence as to agency. 
 
 548. Where auctioneer omits to enter name of buyer, he is liable in 
 
 damages ; Townsend v. Van Tassel. 
 
 549. Of conditions and particulars of terms in auction sales. 
 
 550. Example ; condition as to retraction of bid. 
 
 551. Another example ; indorsed notes ; Webster v. Hoban. 
 
 553. Where conditions of sale are posted on the walls of the auction 
 room, entry must refer to conditions. 
 
 553. Another example ; Pierce v. Corf. 
 
 554. Sale avoided where two persons agree not to bid against each 
 
 other. 
 
 555. Where property bought " on joint account ; " Parsons v. Phelan. 
 
 556. By-bidding against public policy; bidder not bound. 
 
 557. Employment of a bidder may be in good faith to prevent sacri- 
 
 fice of property, but the intention should be announced. 
 
 558. An auction implies that goods shall be struck off to the high- 
 
 est real bidder, then every person stands on common ground ; 
 Steele v. Ellmaker ; false description of goods. 
 
 559. The same rule of good faith applies equally to the fourth as to 
 
 the seventeenth section ; underbidding vitiates the sale. 
 
 560. Of puffers ; National Bank of Metropolis v. Sprague ; where a 
 
 real bid intervenes, sale held valid. 
 
 561. Sale void where a puffer is employed ; Fisher v. Hersey. 
 
 562. An auction sale " without reserve " and " positive " sales, law of. 
 
 563. A sale of stolen goods at auction passes no title; auctioneer 
 
 liable ; Hoffman v. Carow. 
 
 564. When may an auctioneer decline to receive a bid. 
 
 565. An action for damages will not lie for expenses and loss of time 
 
 incurred by a person, where goods are advertised for sale by 
 auction, and afterwards withdrawn by the auctioneer ; Har- 
 ris i'. Nickerson. 
 
 566. A court of equity will relieve a purchaser in certain cases. 
 
 § 515. The ordinary meaning of an auction is a public 
 sale by an authorized auctioneer of property to the highest 
 bidder. 
 
 The word auction, as well as the mode of sale itself, is of 
 
422 SALES. [chap. xxt. 
 
 Eoman origin. It is called sub hasta in some old books, 
 from the fact that in early times auction sales were of the 
 spoils taken in war, and a spear was erected as the signal 
 of the sale by auction. 
 
 The Dutch custom of beginning at a high price and grad- 
 ually reducing it until some one closes with the offer, in 
 sales at auction, makes a binding contract if conducted in 
 good faith. 
 
 In general, the term sale is of legal import, whether ap- 
 plied to an auction or a private sale. Each alike is founded 
 upon mutuality of obligation. 
 
 In attendance at auction sales there are, ordinarily, the 
 owner of the goods to be sold ; the auctioneer ; and highest 
 bidder, together with the portion of the public attending 
 at the sale. 
 
 An auction has not inaptly been called locus penitentim. 
 
 § 516. An auctioneer, according to the ordinary accep- 
 tation of the term, is a person authorized to conduct a pub- 
 lic sale of property by auction for a commission on the 
 proceeds of the sale. 
 
 He is authorized only to sell. 
 
 He is not ex vi termini agent of both parties. 
 
 He is, primarily, the agent of the seller ; but upon a bar- 
 gain being struck, he becomes the agent of the buyer as 
 well. 1 
 
 In some respects he is like a factor, but differs in this, 
 that the law imposes the payment of a duty upon him as 
 well as the credit, in case of a delivery, without the recom- 
 pense of a commission del credere. 
 
 § 517. The statute of frauds of New York, Minnesota, 
 "Nevada, Wisconsin, and the territories of Arizona, Dakota 
 
 !See Revised Statutes of New were called brokers. Spelman in 
 
 York of 1813 ; Hioks v. Minturn, 19 his Glossary, Auctionarii, defines 
 
 Wend., 550; Browne. Cheeney, 38 them thus: Qui publicis subhasta- 
 
 How. (N. Y.), 352, 359 ; Minturn v. tionibus prcesunt, Propolw, et quos, 
 
 Main, 7 N. Y., 220; affg. S. C, 3 Angli, Brokers, dicimus. See, aiso, 
 
 Sandf., 50, sub nom. Minturn v. Goshen v. Kern, 63 Ind., 473. 
 Allen. In early times auctioneers 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 423 
 
 and Montana, contain a specific provision regulating sales 
 by auction, in the following language: 
 
 " Whenever goods shall be sold at auction, and the auc- 
 tioneer shall at the time of the sale enter in a sale-book a 
 memorandum specifying the nature and price of the prop- 
 erty sold, the terms of the sale, the name of the purchaser, 
 and the name of the person on whose account the sale is 
 made, such memorandum shall be deemed a note of the 
 contract of sale within the meaning of the statute of 
 frauds." l 
 
 Before this enactment in those states considerable differ- 
 ence of authority existed as to the particular memorandum 
 required in such sales, and thereby the legislature redeemed 
 the law from a perplexing uncertainty. 
 
 For a generation, however, before these enactments, and 
 in states where no similar law existed, a sedulous compli- 
 ance with the statute of frauds in auction sales was re- 
 quired. 
 
 "When the above requisitions are complied with the agency 
 of the auctioneer arises so far as to enable him to bind the 
 parties. Such agency, however, ceases immediately after 
 the completion of the sale. 
 
 The memorandum must be made by a person not directly 
 interested in the sale — a third person — a person thereunto 
 lawfully authorized. 2 
 
 § 518. In some of the early English cases, doubts were 
 entertained by the judges whether sales by auction were 
 embraced within the meaning of the statute of frauds. The 
 grounds were, first, that the solemnity of the sale precluded 
 the possibility of perjury as to the fact of sale; and second, 
 
 i E. S. of New York, § 4, ch. VII, - Horton v. McCarty, 53 Me., 398. 
 
 tit. II, pt. II; Nevada Gen. Stat., The Code of Georgia, § 2630, reads 
 
 § 2632. In Michigan, California, as follows : " In case of sales' by 
 
 Oregon, Colorado, Dakota, Ne- auction the auctioneer shall be con- 
 
 braska, Idaho, the memorandum of sidered agent of both parties, so far 
 
 the auctioneer giving the terms as to dispense with any further 
 
 and conditions of sale satisfies the memorandum in writing than his 
 
 statute of frauds. own entries." 
 
424 sales. [chap. xxv. 
 
 that the statute was only meant to extend to the mischiefs 
 created by private or clandestine sales. 1 
 
 But Lord Ell'enborough's direct and conclusive answers 
 to these objections in Hinde v. Whitehouse 3 seem satisfac- 
 tory, and clearly show that auction sales ought to and do 
 fall within the statute. He did not think the express requi- 
 sition of a memorandum in writing should be dispensed 
 with, merely because the quantum of parol evidence in such 
 sales is likely to render the danger of perjury less consider- 
 able. 
 
 The policy of that decision has uniformly been followed 
 in England. 
 
 And in this country, since the strong dictum of Chief 
 Justice Savage, in Hicks v. Whitmore, 3 auction sales have 
 been held to be within the statute of frauds. 
 
 A review of the cases will show the different phases and 
 lights in which the several questions have arisen. 
 
 § 519. In South Carolina, in 1817, although by a divided 
 court, in Davis v. Robertson, 4 it was decided that the statute 
 of frauds embraced contracts for the sale of goods, wares 
 and merchandise by auction. 
 
 The sale there was of a lot of cotton. The decision is 
 contradictory of the early cases referred to. 
 
 There Nott, J., said : " The persons present frequently 
 constitute a tumultuous crowd ; the sales are generally con- 
 ducted in a manner that affords the least possible oppor- 
 tune for deliberation ; the crier passes rapidly from one 
 article to another ; no person present takes an interest in 
 anything except what regards himself, and that no longer 
 than while the article is immediately under the hammer; 
 and, although five hundred might be present, one, probably, 
 
 J Simon v. Metevier, 1 W. BL, Knox v. King, 36 Ala., 367; White 
 
 601. v. Crew, 16 Ga. , 421 ; Ennis v. Wal- 
 
 2 7 East, 568; Blagden v. Brad- lev, 3 Blackf.,476; Norris v. Blair, 
 
 bear, 12 Ves., 472; Walker v. Con- 39 Ind., 94; Leavitt v. Watson, 37 
 
 stable, 1 Bos. & Pul., 306; Buck- Iowa, 93. 
 master v. Harrop, 13 Ves., 456. * Mills' E., 31. 
 
 8 12 Wend., 548 (1834). See, also, 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 425 
 
 could not be found, not even the auctioneer himself, who 
 could recollect the price or purchaser of any particular 
 article two hours after it was knocked off." 
 
 This is a clear statement of the manner and course of an 
 auction sale. 
 
 Colcock, J., took the opposite view. 
 
 The case serves to show the conflict of opinion which ex- 
 isted at that time. 
 
 § 520. So in an early Massachusetts case, where a vessel 
 was sold at auction by the defendant to the plaintiff, and 
 the auctioneer omitted to make a note or memorandum in 
 writing of the sale, the court declared the sale to be void 
 for that reason. 1 
 
 The learned Parker, C. J., there observed, that while doubts 
 had been entertained by great men in England whether the 
 statute of frauds included sales by auction, equally great 
 men, he said, had questioned the reasonableness of those 
 doubts ; and thus he deemed himself at liberty to decide ac- 
 cording to his own views, and said : " We are of opinion 
 that it does apply to sales by auction." 
 
 The reason given by Lord Mansfield, that the solemnity 
 of such sales precludes the danger of perjury, he did not 
 think satisfactory. He thought " there was more danger of 
 mistake and perjury where there are so many witnesses, 
 than where there is only one or two." 
 
 § 521. In the well considered case of Hicks v. Whitmore, 2 
 it was held that the statute in relation to auction sales was 
 made in reference to the law as it then existed. It was in- 
 tended to remove all doubts as to the contents of the mem- 
 orandum, and the manner of making it. 
 
 The statute is very clear. It declares that every contract 
 for the sale of goods, etc., for the price of $50 or more, 
 shall be void, unless a note or memorandum of such con- 
 tract be made in writing, and subscribed by the parties to 
 be charged thereby. It must contain " the name of the per- 
 
 1 Davis v. Rowell, 2 Pick., 65 2 12 Wend., 552. 
 (1823). 
 
426 , SALES. [CHAP. XXV. 
 
 son on whose account the sale is made," etc., or there is no 
 binding contract. 
 
 Savage, C. J"., says: " From the phraseology used, I infer 
 that the legislature intended it should not be necessary to 
 insert the name of the real owner, but that it should be 
 sufficient to insert the name of any person having legal 
 authority to sell." This is a reasonable construction. 
 Hence, the statute of frauds is complied with if the auc- 
 tioneer insert in his sale- book the name of the agent, factor, 
 consignee, or any person^ having the legal right to sell, that 
 is, the name of the person on whose account the sale is 
 made. Nor is it necessary that the action should be brought 
 by the same person on whose account, as appears from the 
 memorandum, the sale is made. The real owner may bring 
 the suit, notwithstanding the sale was made through an 
 auctioneer, agent or factor. 
 
 So the auctioneer may ordinarily maintain an action for 
 the price, or for the property sold. This doctrine rests 
 upon the right of the auctioneer to receive, and his respon- 
 sibility to his principal for, the price, and his lien thereon 
 for his commissions, for which he has a special property in 
 the goods. 
 
 § 522. The auctioneer, who writes in his sale-book the 
 article sold, the price, and the name of the buyer, is quoad 
 hoc the buyer's agent. But he must at the same time enter 
 the name of the person on whose account the sale is made, 
 otherwise the vendor is not bound. 1 
 
 It may be urged, said the court, in an early case in 
 Maine, that the auctioneer, who is directly employed and 
 deputed to act for the seller, ought in no case to be re- 
 garded as the agent of the purchaser. " If this were res 
 integra," said the court, " strong reasons might be and have 
 been offered in support of this position." 2 
 
 1 10 Alb. Law Journal, 27. The bind the parties by his signature, 
 
 agency of the auctioneer exists Mews v. Carr, 1 H. & N. 484. 
 
 only at the time of the sale, and - Cleaves v. Foss, 4 Greenl. R. 9. 
 he cannot, at a subsequent day, 
 
OHAP. XXV.] AUCTION SALES AND AUOTIONEEES. 427 
 
 The question: "By what authority does the auctioneer 
 write down the purchaser's name ? " The answer: "By the 
 authority of the purchaser." Persons bid, and announce 
 their biddings loudly and particularly enough to be heard 
 by the auctioneer. 1 And this is done that he may write 
 down their names opposite the lots sold. Therefore he 
 writes the name by the authority of the buyer, whose agent 
 he becomes, it is said, upon knocking down the hammer 
 upon a bona fide bid. 
 
 § 523. As it takes two to make a bargain, it is necessary 
 that the memorandum show who are the contracting par- 
 ties. This may appear by description. But if only one 
 party is mentioned, by name or description, the statute is 
 not satisfied. 
 
 This rule applies equally to sales by auction as to sales in 
 any other mode. 
 
 If the memorandum shows by description with whom 
 the bargain was made, the statute of frauds is satisfied and 
 parol evidence is admissible to apply the description; not to 
 show with whom the bargain is made, but to show who is 
 the person described, so as to enable the court to under- 
 stand the description. Nor is this rule any infringement of 
 the statute, for in all cases where written evidence is re- 
 quired there may be parol evidence to apply the document 
 to the subject in controversy. 
 
 There are many authorities and cases sustaining this doc- 
 trine. 2 
 
 If the auctioneer omit to sign the memorandum which 
 he has made, it will not be sufficient to satisfy the statute 
 of frauds. 3 
 
 lEmmerson v. Heelis, 3 Taunt., Mfg. Co. v. Stoddard, 14 How. (U. 
 
 38, Mansfield, C. J. S.), 446 ; Coate v. Terry, 24 U. C. C. 
 
 2 2 Smith's Leading Cases, 349, P., 571; Benjamin on Sales, sec. 
 
 note ; Williams v. Bacon, 2 Gray, 237. 
 
 387; Sanborn v. Flagler, 9 Allen, aRafferty v. Lougee, 63 N. H., 
 
 477; Dykers & Alstyne v. Town- 54. 
 send, 24 N. Y., 57; Salmon Falls 
 
428 SALES. [chap. XXV. 
 
 * § 524. In Singstaok v. Harding, 1 Nicholson, J., in effect 
 says the uniform current of decisions has been that, the 
 auctioneer having entered the purahaser's name in the auc- 
 tion sale-book as the purchaser, such an entry was a suffi- 
 cient memorandum in writing of the contract in the sale of 
 chattels to gratify the requisition of the statute of frauds; 
 and that the statute makes no distinction between a memo- 
 randum in writing for the sale of the chattels and the sale 
 of lands. 
 
 And further: " The rule which seems to be adopted as to 
 the contents' of the memorandum is this : that the memo- 
 randum must contain everything that is necessary to show 
 the contract between the parties, so that no parol evidence 
 shall be necessary to explain the intention of the parties or 
 the terms of the agreement." 2 
 
 § 525. In Fessenden v. Mussey 3 the plaintiff sought in 
 an action in assumpsit to recover the price of a pew sold at 
 auction. 
 
 On the trial a book was offered in evidence containing 
 the following entry : 
 Sale of pew in B. St. Ch., for account S. F., Monday, March 24, 
 
 '45, Pew No. 18, B. M $112 50 
 
 Charges, advertising and commissions 5 00 
 
 On appeal it was held that, if this entry was made by 
 the auctioneer, or by his clerk under his direction, at the 
 time and place of sale, it was enough to take the case out of 
 the statute of frauds. 
 
 The entry designated what was sold, by and to whom, 
 the time and place, and although the defendant's middle 
 name was omitted, it was held competent to show that he 
 was known by the name used, or that he subsequently rec- 
 ognized it as his, and as to the terms of sale, the presumption 
 is it was for cash. 
 
 1 4 H. & J. (Md.), 192; First Bap- on Sales, 14; McComb v. Wright, 
 
 tist Church of ^thaca v. Bigelow, 16 4 Johns. Ch., 659; Payne v. Cave, 
 
 Wend., 31. 3 T. R., 148. 
 
 2 Story on Agency, 27 ; Campbell s 11 Cush. R., 127. 
 
CHAP. XXV.] AUCTION SALES AND ATTCTIONEEKS. 429 
 
 In general it is held that a contract for the sale of a pew 
 in a church falls within the operation of the statute of 
 frauds. 1 
 
 § 526. The able and luminous opinion of Chief Justice 
 Savage, 2 in Hicks v. "Whitmore, in construing the clause of 
 the statute as to auction sales, enunciated the true doctrine 
 and settled the law in this country on that subject. There, 
 an action was brought to recover the difference between the 
 first and second sales of a vessel sold by auction. One of 
 the conditions of the sale was approved indorsed notes at 
 six months. The vessel was struck off to the defendant 
 at the first sale for $3,150, and was resold, as alleged, by 
 reason of non-compliance with the said condition, for $2,550. 
 The vessel was first sold at the Merchants' Exchange in 
 New York, December 18, 1830. 
 
 The auctioneer wrote down on a piece of paper, at the 
 time, in pencil, the name of the highest bidder, and the 
 price; but he did not write down the names of the owners, 
 nor the " person on whose account " the vessel was sold. 
 The memorandum read: "December 18, 1830, W. W. & E. 
 Thompson, selling the brig Anna Maria to Swanton Whit- 
 more, for $3,150, terms, approved indorsed notes at six 
 months, $10." 
 
 The auctioneer testified that the vessel was put up for 
 sale at 2 o'clock, P. M. ; that he was from fifteen to twenty 
 minutes in making the sale, and went immediately to his 
 counting-house in Wall street, near Pearl, and there made 
 the entry in his book ; that he had no doubt it was made 
 
 1 Freeport v. Bartol, 3 Greenl., ing within the statute of frauds (in 
 
 340. As to cases touching the sale 1806) in England, so Chief Justice 
 
 of church pews, see 1 "Washb. Eeal Savage settled that law in this 
 
 Prop., 31; Daniel u Wood,. 1 Pick., country. In Hinde v. Whitehouse, 
 
 102; Cox v. Baker, 17 Mass., 438; the buyer signed his name in the 
 
 Church v. Wells, 24 Pa. St. , 249. catalogue opposite the lots knocked 
 
 2 12 Wendell (N. Y.) E., 548 off to him, and the sale was sub- 
 
 (1834). As Lord Ellenborough's ject to conditions which werle not 
 
 strong dicta in Hinde v. White- mentioned in the catalogue, not 
 
 house (7 East, 558) settled the law annexed to it. Held, that this was 
 
 as to sales of goods by auction be- not a sufficient memorandum. 
 
430 SALES. LCHAP. XXV. 
 
 before 3 o'clock. A day or two after the sale, the defend- 
 ant called upon him and offered to procure the name of 
 "K L. & Co." as indorsers to his paper. He communir 
 cated the fact to the owners of the vessel, but they were 
 not satisfied. Several days thereafter he told the defend- 
 ant the paper was not satisfactory, to which the defendant 
 answered that he could give no other. 
 
 On December 28, the auctioneer informed the defendant 
 that unless he complied with the terms of sale before 5 
 o'clock of that day, the brig would be advertised, and sold 
 at public auction on the 31st of the month, at 2 o'clock, at 
 the Merchants' Exchange, on his account, and would hold 
 him liable, for any deficiency, and account to him for any 
 surplus. The vessel was sold accordingly, and brought 
 $2,550. 
 
 On the da}^ of the sale, the defendant wrote to the auc- 
 tioneer that he had fully performed his contract; that 
 after the refusal to deliver the vessel to him, he did not 
 consider himself " in the least degree interested in the ves- 
 sel or the proceeds." 
 
 The auctioneer did not know Robert T. Hicks, nor George 
 Maxwell, who were joined as plaintiffs with W. "W. and 
 E. Thompson ; he was employed by the Messrs. Thompson 
 to sell the vessel, and their firm consisted only of them- 
 selves. 
 
 It was shown that the vessel belonged to the plaintiffs. 
 
 A nonsuit was asked for on the ground that the mem- 
 orandum was not in accordance with the statute of frauds. 
 
 The testimony tended to show that the credit of " E". L. 
 & Co." was good ; but the jury found for the plaintiffs in 
 the sum of $670. After citing the section of the statute of 
 frauds as to auction sales, and stating that it had never be- 
 fore been passed upon, Savage, C. J., says: "The statute 
 was no doubt made in reference to the law as it existed at 
 the time, and was intended to remove all doubt or uncer- 
 tainty, if any existed, as to the contents of the memoran- 
 dum." 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 431 
 
 It will be observed that it is not the name of the vendor 
 or owner that the statute requires, but the name of the per- 
 son on whose account the sale is made, which " may well 
 be complied with by inserting the name of the agent, factor 
 or consignee." 
 
 As to the insufficiency of the writing as a memorandum 
 he observes : " The memorandum made in pencil was clearly 
 not a compliance with the statute, because it was not made 
 in the sale-book. The statute says that certain contracts by 
 parol shall be void, unless certain things are done. It is 
 not enough that a memorandum is made, but it must be 
 made in the sale-book of the auctioneer, not in any other 
 book, his day-book or his ledger as such, but a book in 
 which he enters his transactions of sales. I do not mean to 
 say that he may not make his day-book his sale-book, but 
 the legislature evidently intended that the auctioneer should 
 keep a book called a sale-book, which should contain an 
 entry of his sales." 
 
 § 527. Sales b}>- auction not made in sedulous compliance 
 with the statute of frauds are void. 
 
 The action of Hicks v. Minturn 1 was brought to hold the 
 auctioneer liable for negligence in omitting to conduct the 
 auction sale of a vessel in conformity with the statute. 
 
 These plaintiffs had brought an action against the pur- 
 chaser, and were nonsuited ; 2 and now sought to recover 
 the difference between the first and second sales, and the 
 costs incurred in the suit against Whitmore. The manner 
 of the sale and the facts and circumstances attending it are 
 given in the preceding section (526), and therefore it will 
 not be necessary to restate them here. 
 
 The court, Nelson, Ch. J., held that the plaintiffs in this 
 case must rely upon the implied contract, arising out of the 
 employment of the defendant in his professional character, 
 and that this could not extend beyond the duties imposed 
 by reason of such employment. That like other profes- 
 sional men or agents, auctioneers assume upon themselves 
 
 1 19 "Wend. , 550 (1838). 2 12 Wend. , 548. 
 
432 SALES. [chap. XXV. 
 
 an obligation to their employers to perform the service con- 
 fided to them with ordinary care and skill, and become re- 
 sponsible in default of either; in other words, "they are 
 responsible for loss arising from gross negligence or igno- 
 rance." 
 
 The court decided that the auctioneer was not liable, be- 
 cause it cannot be maintained that the omission to comply 
 with the terms of the statute afforded conclusive evidence 
 of gross negligence or ignorance, and for which a verdict 
 should have been directed for the plaintiff. 
 
 The act had never been under the observation of the 
 court, and its meaning in respect to the point wherein the 
 defendant erred, presented a case for construction about 
 which the legal profession might well differ, and where, of 
 course, it would be most unjust to hold that a layman must 
 decide correctly at his peril. 
 
 The judgment in favor of the defendant was affirmed. 
 
 Lord Ellenborough, in Derew v. Daverill, 1 said in a sim- 
 ilar case : " I pay an auctioneer as I do any other profes- 
 sional man, for the exercise of skill on my behalf, which I 
 do not possess ; and I have the right to the exercise of such 
 skill as is ordinarily possessed by men of that profession or 
 business." 
 
 § 528. The California case of Craig v. Godfrey 2 also 
 presents the question of the sufficiency of an auctioneer's 
 memorandum. There, the statute of frauds, like that of 
 New York, requires the auctioneer to make a specific mem- 
 orandum at the time of the sale. 
 
 The auctioneer omitted to write in his sale-book the name 
 of the person on whose account the sale was made, and did 
 not do so until the evening of the day of the sale. The 
 court, Hastings, C. J., held that the memorandum was in- 
 sufficient. This objection is not merely technical. The 
 memorandum of an auctioneer must be as comprehensive as 
 
 1 3 Camp., 452. 2 1 California E., 415; 54 Am. 
 
 Dec, 299, n. 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 433 
 
 the memorandum of other contracts under the statute of 
 frauds. 
 
 He is agent of both parties immediately upon the con- 
 summation of the sale, not afterwards. 
 
 As the contract in this case was not in fact signed by the 
 auctioneer, as agent of the defendant, until several hours 
 after the sale, he possessed no authority whatever to sign 
 when he did, by reason of this lapse of time. The auction- 
 eer's agency only attaches immediately after the sale. 
 
 It was contended that as a day is to be considered a 
 point of time, therefore if the memorandum was written 
 during the day, it was made at the time of the sale. But 
 the court, following the line of reasoning in the case of The 
 People ex rel. Campbell v. Clark, 1 held that " a day is not to 
 be considered a unit, to the prejudice of the rights of a 
 party," and that an examination should be had of the very 
 point of time when an act is done, as the approval of an act 
 of the legislature by the executive. 
 
 The rule here enunciated is in accordance with the well- 
 considered decisions and is sound law. Respecting the 
 making of such a memorandum, the law takes notice of 
 fractions of a day. 
 
 In Hicks v. "Whitmore, 2 on a precisely similar point, the 
 supreme court held that a memorandum entered by an auc- 
 tioneer in his sale-book, in the name of the person on whose 
 account the sale was made, only one hour after the sale, 
 was insufficient under the statute of frauds to bind the 
 vendor. 
 
 § 529. It is well settled that an auctioneer is required to 
 enter in his sale-book the particulars of the sale, whether 
 by sample, or otherwise. 
 
 Thus it was held in McMullen- v. Helberg, 3 where the de- 
 fendant, at an auction sale, purchased certain lots of maize, 
 the property of the plaintiff, the bulk of which was in store. 
 
 11 California R., 406; Mews v. 2 12 Wendell R., 548. See Alb. 
 Carr, 1 H. & N., 484. Law Jour., vol. 10, p. 27. 
 
 3 6L. R. Jr., 463. 
 
 28 
 
434 SALES. [chap. XXV. 
 
 In an action for not removing the maize within the time 
 mentioned in the conditions of sale, and to recover the loss 
 upon a resale, the plaintiff and the auctioneer testified that 
 the sale was by sample; and it appeared that samples had 
 been exhibited at the auction; but the entry in the auction- 
 eer's book of the sales to the defendant did not state that 
 fact. The court held that the sale having been by sample, 
 the entry in the auctioneer's book omitted a material term 
 of the contract, and that the memorandum was not suffi- 
 cient within the meaning of the statute of frauds. 
 
 "When goods are sold by sample, evidence of a custom of 
 trade as to returning or making an allowance for such of 
 the goods as do not answer the sample is competent and 
 receivable. 1 But there is no implied condition at law that 
 the purchaser on a sale of goods by auction has a right to 
 inspect and measure the goods. 2 
 
 " The memorandum," says the court, " must not only be 
 made in the sale-book, but must be made at the time of the 
 sale. If these words are taken literally, they are perfectly 
 clear and intelligible ; but if it be said that the time of sale 
 means one hour after the sale, we shall find ourselves legis- 
 lating, and appointing a different time from that mentioned 
 by the legislature." 
 
 An entry made in pencil is as valid as if made in ink, but 
 it must be done before any other business engrosses the 
 auctioneer's attention ; i. e., immediately upon the comple- 
 tion of the sale, when no occurrence shall have happened 
 to obliterate it from his memory. 
 
 The court held that the memorandum was not in compli- 
 ance with the statute, and a judgment of nonsuit was en- 
 tered. 
 
 § 530. It was held by Chief Justice Oakley, in Goelet v. 
 Cowdrey, 3 that the meaning of the section [four] as to sales 
 
 1 Cooke v. Eeddelien, 1 Car. & K., 3 1 Duer (N. Y, Supreme Court), 
 561. R., 140. 
 
 2Pettitt v. Mitchell, 4 Man. & 
 G., 819. 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 435 
 
 of goods by auction, taken, in connection with the preced- 
 ing section, requiring a written memorandum of the bar- 
 gain, evidently is, that every such sale (where the price 
 exceeds the sum mentioned in the statute) shall be void, 
 unless the goods are immediately paid for, or delivered in 
 whole or in part ; or, unless the requisite memorandum is 
 made at the time of the sale. Otherwise a defective mem- 
 orandum, for example, one not made at the time, might be 
 admitted as evidence of a valid sale; and this would, so far 
 as the power of the court extends, be a virtual repeal of the 
 law. 1 From the decisions the necessary sequence follows, 
 that the moment the auctioneer violates any provision of 
 the statute in this regard, that moment his agency ceases. 
 
 An auctioneer possesses no authority whatever to bind 
 either party to any contract, except in the manner pre- 
 scribed by the statute. The general law of agency applies 
 in such sales. In case of private sales by an auctioneer, it 
 has been held that he is solely the agent of the vendor, and 
 in no sense the agent of the vendee ; and so it was held in 
 the court of exchequer. 2 
 
 § 531. The decisions are also consistent in this, that the 
 memorandum must be made by the auctioneer in his sale- 
 book at the time of the sale. It must be done eo instanti — 
 simultaneously. This requirement is strictly construed. 
 While the rule may seem somewhat rigid, it accords with 
 the policy of the law. It accords likewise with the inten- 
 tion of the legislature, and that is the golden rule of con- 
 struction of all statutes. 
 
 Hence the conclusion that the memorandum of an auc- 
 tioneer, required by the statute of frauds, must not be left 
 to memory ; it must be the immediate record of the facts 
 by him, made at the time when they occur. 
 
 The price, and the name of the vendor, must in terms ap- 
 pear. 
 
 i Horton v. McCarty, 53 Me., 394; Flintoft v. Elmore, 18 TJ. C. C. P., 
 O'DonneU v. Leeman, 43 id., 158; 274. 
 
 Smith v. Arnold, 5 Mason, 414; 2 Mews v. Carr, 1 H. & N., 484; 
 
 26 L. J. Ex., 39. 
 
436 SALES. [chap. xxt. 
 
 These rules have been adhered to since Chief Justice 
 Savage's strong dicta in Hicks v. Whitmore l in 1834. That 
 was the first adjudication in New York upon the section 
 of this statute. The purport and meaning of which enact- 
 ment would seem to be, that an auctioneer is the agent of 
 both buyer and seller, upon his writing down the purchas- 
 er's name in his sale-book, immediately upon striking off 
 the property. 2 
 
 Such memorandum of the auctioneer must contain all 
 the particulars of the terms of sale. The evident intention 
 of the legislature being that nothing should be left to in- 
 ference, memory, presumption or parol proof. 
 
 And fractions of a day are regarded as material ; delay 
 is fatal to the validity of the contract. 3 
 
 § 532. Hence, in Smith v. Arnold, 4 as a reason why the 
 law imposes the qualification that the memorandum of the 
 auctioneer, in order to bind the purchaser, must be con- 
 temporaneous with the sale, and not made afterwards, says 
 Mr. Justice Story in effect, is to prevent men from being 
 ensnared by contracts subsequently reduced to writing by 
 agents ; and also the further reason, that, in case of any dis- 
 pute, " the auctioneer would naturally incline to the side 
 of his employer, against the person with whom he has no 
 other relation than that of a bidder for the property which 
 he, as agent for the owner, has offered at public sale." 
 
 He also substantially said that the auctioneer is the agent 
 of the seller, but it is not so clear that he is agent of the 
 buyer; and that such conclusion is "founded on somewhat 
 artificial reasoning." 
 
 But nevertheless the doctrine seems to be established 
 
 1 12 Wend., 548; Morton v. Dean, Barn. & Adol., 446; Rennys v. 
 
 13 Met., 385; Briggs v. Munchon, Proctor, 3 Ves. &B., 57. 
 
 56 Mo., 467; Walker v. Hening, 21 3 Craig v. Godfrey, 1 Cal., 415 
 
 Gratt., 678; Gill v. Hewitt, 7 Bush, Metts v. Bright, 32 Am. Dec, 683 
 
 10; Fessenden v. Mussey, 11 Cush., Murfree v. Carmack, 26 id., 232 
 
 127. Williamson v. Farrow, 21 id., 492, 
 
 2 Heideman v. Wolf stein, 12 • 4 5 Mason, C. C. R., 414. 
 Mo. App., 368; Bird v. Boulton, 4 
 
CHAP. XXV.] AUCTION SALES AND ATJOTIONEEKS. 437 
 
 upon the theory that an auctioneer is deemed a disinter- 
 ested person. 
 
 § 533. Mr. Wood, in his valuable work on frauds, says 
 that an auctioneer is the agent of the vendor alone until 
 the bid is knocked off, when he becomes also the agent of 
 the vendee, for the purpose of perfecting the sale, and it is 
 upon the ground of this dual capacity that his memoran- 
 dum of a sale, made by him at the time thereof, and he/ore 
 this agency ceases, is binding upon both. This rule extends 
 only to third persons, acting as auctioneers, and where a 
 party acts for himself, or his agent. 1 
 
 § 534. If the owner of the property sold at auction be 
 himself the auctioneer, he cannot bind the vendee by his 
 memorandum, as he is not, in the language of the statute 
 of frauds, a person thereunto lawfully authorized. 
 
 The provision of the statute of frauds requiring the 
 memorandum to be signed by some person thereunto law- 
 fully authorized, meaning a third person, is based upon 
 sound commercial reasons, for the seller is thereby prevented 
 from fastening his own terms of salcupon the buyer. Other- 
 wise the door to possible fraud would be thrown wide open, 
 and the very mischief prevail which the statute intends to 
 guard against. 2 
 
 § 535. In Frost v. Hill, 3 however, the court held that a 
 memorandum of the goods sold and the prices bidden for 
 them, made by the clerk of the vendor who sells goods at 
 auction, was sufficient under the statute to bind the vendee. 
 In such case he is,^>ro hac vice, the auctioneer's clerk, and 
 agent of the buyer upon a bargain being struck. 
 
 But in Tull v. David, 4 where a trustee, who, at an auction 
 sale, under a deed of trust, acted as his own auctioneer, it 
 was decided that he could not bind the purchaser by a 
 memorandum of the sale signed by himself. 
 
 1 Wood on Frauds, 726. 3 3 Wendell (N. Y.) R., 386. 
 
 2 Smith v. Arnold, 5 Mason, 417; 4 45 Missouri, 444. 
 Bent v. Cobb, 9 Gray (Mass.), 397 ; 
 
 Wright v. Dannot, 2 Camp., 203. 
 
4:38 SALES. [chap. xxy. 
 
 In Farebrother v. Simmons 1 Mr. Chief Justice Abbott 
 (afterwards Lord Tenterden) substantially held that the 
 agent contemplated by the statute of frauds, who is to bind 
 a defendant by his signature, must be a third person ; not 
 the other contracting party ; and decided, where an auc- 
 tioneer wrote down the defendant's name by his authority 
 opposite to the total purchased, that in an action, brought in 
 the name of the auctioneer, the entry in such book was not 
 sufficient. 
 
 And in Starman v. Brandt 2 it was expressly decided that 
 one of the parties to the contract cannot sign the name of 
 the other, so as to bind him or constitute a contractual ob- 
 ligation. 
 
 § 536. In an auction sale made in good faith it seems to 
 be immaterial whether the purchaser's name is written in 
 the sale-book by the auctioneer or by his clerk. 
 
 Depue, J., in the case of Johnson & Miller v. Buck, 3 says 
 that " when the bids are announced, and the property 
 struck off, the clerk is the agent of both parties to record 
 the sales and affix the signature of the purchasers, although 
 he is employed to act as clerk by the auctioneer. ]STo rea- 
 son for his disability to act as agent for the purpose of 
 making the signature of the purchaser, as between the lat- 
 ter and the auctioneer, can be adduced, which will not 
 operate equally to exclude the auctioneer, where the litiga- 
 tion is directly between the vendor and purchaser." 
 
 The signature must in all cases be made by an agent law- 
 fully authorized to make the same. 
 
 § 537. In Moss v. Cohen 4 an auctioneer employed his 
 
 1 5 Barn. & Aid., 333. 4 3 Vict. L. E., 205 ; 3 Anst. Jur., 
 
 2L. B., 6 Q. B., 720; Flintoft v. 104; Servier v. Walker, 3 id., 182. 
 
 Elmore, 18 TJ. C. C. P., 274. The signature of the clerk of an 
 
 3 35 N. J. , 342 ; 22 Am. Law Eeg. auctioneer on behalf of a pur- 
 
 N. 8., 9; Browne on Stat, of Fr., chaser is sufficient to charge the 
 
 369 ; Fiske v. McG-regory, 34 N. H., party purchasing, within the stat- 
 
 414; Norris v. Blair, 39 Ind., 90; ute of frauds. Clarkson v. Noble, 
 
 Butler v. Thomson, 2 Otto, 412 ; 2 Q. B. (Ontario), 361. 
 Morton v. Dean, 13 Met., 385. 
 
CHAP. XXV.J AUCTION SALES AND AUCTIONEERS. 439 
 
 clerk, at a sale by auction, to act as amanuensis, by writing 
 down in the sale-book the name of each person to whom the 
 lots were respectively knocked down. 
 
 It was in that case held that, in order to comply with 
 section 17 of the statute of frauds, the name of each pur- 
 chaser should be called out by the clerk before making the 
 entry of the name in the sale-booh. 
 
 "While the auctioneer may sign as agent for the pur- 
 chaser, say some of the cases, his clerk has not the same 
 authority. And yet it would seem that the auctioneer's 
 clerk is merely an elongated pen used by the auctioneer. 
 
 § 538. The plaintiff, in Price v. Dunn, 1 had an auction 
 sale of boots and shoes, commencing on the 5th of April, 
 continuing through the day, and extending over the next 
 day, when the sale was closed. 
 
 One Jesse Butler was the auctioneer, and one Stitt, a 
 clerk in the regular employ of the plaintiff, acted as clerk 
 of the auctioneer. The memorandum of the sales was- 
 made by Stitt in a book owned by the plaintiff, but all the 
 entries at the sale were made under the direction of the 
 auctioneer. 
 
 The following caption, before the sale commenced, was 
 
 written in the sale- book: 
 
 " April 5, 1866. 
 
 " Memorandum of auction sale on account of Milton S. 
 
 Price, of boots and shoes, commencing April 5, 1866. 
 
 Terms, ninety days, bank note, approved paper, names of 
 
 purchasers and lots struck off to each, as noted as hereafter 
 
 following. 
 
 " Jesse Butler, Auctioneer, 
 
 " Per W. Stitt, Clerk." 
 
 Stitt, the clerk, at the time of each sale, in the presence 
 and under the direction of the auctioneer, entered in the 
 book, under the above memorandum, the name of each pur- 
 chaser, the number and kind of goods sold, and the price of 
 
 156 Barbour (N. Y.), 647 (1868). 
 
SALES. [CHAP. XXV. 
 
 each lot. At the close of the first day's sale Stitt signed at 
 the end: "Jesse Butler, auctioneer, per Stitt, clerk." 
 
 On the following day Stitt continued to enter, under the 
 memorandum of the preceding day, the names of the pur- 
 chasers, the amount and kind of goods sold, and the price 
 of such goods to the respective purchasers. 
 
 Forty parcels were sold to the defendant on the second 
 day. Each parcel was entered separately by Stitt, in the 
 presence and under the direction of the auctioneer, as it was 
 knocked off, by inserting the name of the defendant, the 
 description of the parcel sold, and the price of the same ; 
 and at the end of the sale for that day the name of the auc- 
 tioneer and of Stitt were subscribed at the end, as was done 
 on the previous day. 
 
 The defendant claimed that the memorandum was insuf- 
 ficient on the ground that such memorandum should have 
 been made as often as a parcel was sold. But the court, 
 Foster, J., held that the entries made by Stitt at the close 
 of the sale of each parcel, under the direction and in the 
 presence of the auctioneer, was a sufficient compliance with 
 the statute of frauds, and the sale was declared to be valid. 
 The judgment was affirmed. 
 
 § 539. If the entry of the sale at auction be made in the 
 regular sale-book, in the sight and with the concurrence of 
 the buyer, by the auctioneer's clerk, he is deemed so far the 
 agent of the buyer as that the auctioneer may maintain an 
 action thereon. 
 
 In Hulse v. Young, 1 where this point was directly in- 
 volved, the court said : " there can be no doubt that the 
 action will lie." 
 
 So it has been held that an auctioneer may maintain an 
 
 action for goods sold and delivered against a buyer, though 
 
 the sale was at the house of a third person and the goods 
 
 were not known to be his property. 3 
 
 116 Johns. (N. Y.), 1; Norris v. 2R binson v. Rutter, 4 E. & B., 
 
 Blair, 39 Ind., 90; Fiske v. McGreg- 954: 24 L. J. Q. B., 250; Chitty on 
 
 ory, 34 N. H., 414; Gerard v. Tag- Cont., 185. 
 gart, 5 Serg. & R., 29. 
 
CHAP. XXV.] AUCTION SALES AND ATTCTIONEEKS. 441 
 
 § 540. An auctioneer has a possession, coupled with an 
 interest, in goods which he is employed to sell, — not a bare 
 custody like a servant or shopman. 
 
 It was observed by the court in Williams v. Millington, 1 
 that the case of Simon v. Metevier 2 proved that an auction- 
 eer was only the channel through which the contract was 
 made between the buyer and seller; but this must be taken 
 secundum subjectam materiem; though he is an agent to 
 some purposes, he is not so to all; he is an agent for each 
 party in different things, but not in the same thing; when 
 he prescribes the rules of bidding, and the terms of the sale, 
 he is the agent for the seller, but when he puts down the name 
 of the buyer he is agent for him only. 
 
 "While, under certain conditions and circumstances, the 
 auctioneer is the agent duly authorized to sign a contract 
 for the buyer, it is held otherwise in cases where the auc- 
 tioneer himself brings the action. 
 
 And as has already been shown, the sale by auction is 
 consummated when the hammer falls with the bidder's as- 
 sent, and the auctioneer makes the requisite memorandum, 
 provided the sale has been fairly and honestly conducted. 
 
 § 541. If several distinct parcels or lots are bought at 
 an auction sale, each parcel or lot is ordinarily deemed a 
 separate contract; but, if the aggregate price of the pur- 
 chases reaches or exceeds the sum mentioned in the statute 
 of frauds, it is an entire contract and falls within its opera- 
 tion. 
 
 Thus, in Jenness v. Wendell, 3 where certain household 
 
 11 H. BI., 81; Batturs v. Sellers, S., 377. This general doctrine was 
 
 5 Harr. & J., 117; Stoddard v. also adhered to in Baldey v. Parker, 
 
 Vestry, 2 Gill & John., 227. 2 Barn. & Cres,, 37; in that case, 
 
 HW. Bl., 599. Holroyd, J., observes that, at first, 
 
 8 51 N. H., 63; Wells v. Day, 124 it appeared to have been a contract 
 
 Mass., 38; Ruggv. Minitt, 11 East, for goods of less value than £10, 
 
 218 ; Roots v. Lord Dormer, 4 B. & but, in the course of the dealing, 
 
 Ad., 77; Benjamin on Sales, sec. it grew to a contract of a much 
 
 136; Hausmanv. Nye, 62Ind.,485; larger amount; at last, therefore, 
 
 Ooffman v. Hampton, 2 Watts & it was one entire contract, within 
 
442 SALES. [chap. XXV. 
 
 furniture, farming utensils and tools were sold at auction, 
 the court expressed the opinion that there existed very little 
 difference, ordinarily, between a sale at auction and a sale 
 contracted in any other way, of several articles at an 
 agreed price, which are all put together in one account. The 
 statute applies, if in the result it turns out that the amount 
 reaches or exceeds the sum specified in the statute. ISTor 
 would this principle be changed if the sale were completed 
 in one day, or extended over several days. 
 
 § 542. The early case of Mills v. Hunt ' disclosed the 
 facts that Hunt bought at auction (Mills Brothers & Co. 
 being the auctioneers) five parcels, described in the cata- 
 logue as 5, 31, 32, 33 and G. The goods were sold by 
 sample. They belonged to persons other than the defend- 
 ants, but the names of the owners were not disclosed at the 
 sale, nor was it known that Mills Brothers & Co. acted as 
 agents. At the trial, however, it appeared that they did 
 so act, and that the goods were to be delivered and the 
 bills collected by the owners of the goods. 
 
 The terms of the sale were approved indorsed paper at 
 six months, for sums over $100 ; under that sum cash, with- 
 out discount. 
 
 A bill of the parcels purchased, amounting to $224.40, was 
 delivered to Hunt, who was directed to call on the owners for 
 the goods. He called on the owners' agent and received 
 all but parcel " G," and not receiving that he called on M. 
 B. & Co. and tendered to a clerk in their employ, in the 
 hearing of one of that firm, an indorsed note for the 
 amount, payable in six months from the date of sale, tell- 
 ing the clerk at the same time that if the note was not ap- 
 
 the meaning and mischief of the supra, and so far disregarded. The 
 statute of frauds. A somewhat court held that a part deliverv Tin- 
 different view seems to have been der the circumstances was sum- 
 expressed at nisi prats in Hodgson cient, and affirmed the judgment. 
 v. Le Bret, 1 Camp., 233, by Lord Emmerson v. Heelis, 2 Taunt., 38. 
 Ellenborough, which case was re- See opinion of Best, J., page 45. 
 f erred to in Baldey v. Parker, 1 17 Wend., 334; 20 id., 431. 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 443 
 
 proved, he would pay the money, discount being deducted. 
 The clerk answered that " he knew nothing," etc. 
 
 On the trial below the plaintiff (Hunt) proved the value 
 of parcel " G " and rested. 
 
 Defendants moved for a nonsuit on the grounds : 1. That 
 the contract was not binding within the statute of frauds. 
 2. That the tender of the note as made was not sufficient. 3. 
 That the defendants were not the owners of the goods, but 
 mere agents ; and 4. That there was no proof of damage. 
 
 The judge, in refusing to nonsuit, held that the sale was 
 entire ; that the delivery of a part of the goods took the case 
 out of the operation of the statute. 
 
 The jury rendered a verdict for the plaintiff, Hunt. 
 
 Nelson, Ch. J., delivered the opinion in the appellate 
 court. He substantially held that Mills Brothers & Co. 
 must be regarded as the owners of the goods for the pur- 
 pose of deciding the question; for they so held themselves 
 out by the catalogue, and nothing occurred at the sale to 
 vary the legal effect of such conduct. 
 
 " Honest dealing requires the auctioneer to disclose in his 
 catalogue, or otherwise, the names of his principals, if he 
 does not intend to take their places in respect to the pur- 
 chasers; otherwise he would be enabled to speculate upon 
 them, by thrusting between him and them an irresponsible 
 owner in every case of an unprofitable.sale." 
 
 This principle is well settled by numerous authorities. 
 
 The question as to whether there had been such a partial 
 delivery as to take the sale out of the statute was discussed, 
 and the court held that there could be no doubt of the fact, 
 whether the intent and understanding of the parties be re- 
 garded, or the meaning and policy of the statute of frauds. 
 
 He said : " Where the purchase is made at one time and 
 from the same individual, however numerous the articles 
 may be, the whole transaction should be deemed as consti- 
 tuting an entire contract, and the prices of the different ar- 
 ticles fixed upon, as but part and parcel of it. To adopt 
 any other construction of such a purchase would be a vir- 
 
444 SALES. [CHAP. XXV. 
 
 tual repeal of the statute for all useful or practical purposes, 
 in a large amount of sales to which it has been understood 
 as applying." 
 
 § 543. There are some cases in the books, but not many, 
 on the subject of sufficiency of description of the seller, 
 as entered in the sale-book of the auctioneer. 
 
 The decisions, in interpreting the statute of frauds as to 
 parties to the contract, hold that their description must be 
 so clear that their identity cannot fairly be disputed. 
 
 Thus, in the case of Sale v. Lambert, 1 the particulars 
 stated that the property was put up for sale by " the pro- 
 prietor;" no further description was given in the condi- 
 tions. The auctioneer signed a memorandum stating that 
 "the vendor on his part shall in all respects fulfill the con- 
 ditions of sale mentioned in the said particulars." The 
 court held that the word "proprietor" was a sufficient de- 
 scription of the vendor within the statute of frauds. 
 
 In Potter v. Duffield, 2 however, where there was nothing 
 to identify the seller except the signature of the auctioneer 
 "on the part of the vendor;" and in another "vendors," 
 the same judge who decided the case of Sale v. Lambert, 
 supra, held that this description was not sufficient. 
 
 § 544. Under a sale by auction the following signature 
 was held insufficient. 
 
 The auctioneer had a book in which were entered the 
 conditions of sale. 3 
 
 Under these conditions in the book the auctioneer's 
 name was written by himself; and underneath which were 
 columns in which were entered the lots, the name of the 
 buyers, and the prices paid for the goods. K., a buyer, 
 
 !43 L. J. Ch., 470; L. E., 18 Eq., held sufficient, in Catling v. King 
 
 1. See, also, Bossiter v. Miller, H. (appellant), 46 L. J. B. Ch., 384; 
 
 L., 48 L. J. B. Ch., 10; L. R., 8 L. R., 5 Ch. Dec, 6G0. 
 
 App. Cas., 1134. 3 Williams v. Ross, 2 Wyatt & 
 
 2 43 L. J. R. Ch., 472; L. B., 18 Webb's (Vict.) Law, 285. See, 
 
 Eq.,4. The description " a trustee also, Shiel v. Colonial Bank, 1 
 
 selling under power of sale" was Vict. B. (Eq,), 40. 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEEES. 445 
 
 bought several consecutive lots. In. the line of the first 
 lot bought by him was entered his name, " Eoss," in the 
 proper column ; but in the lines of the next succeeding lots ' 
 bought by him was entered simply the word " Do," in the 
 proper column. 
 
 On a rule nisi to enter a nonsuit, on the ground that the 
 signature by entry of "Do." underneath the name "Eoss" 
 in the column of buyers, it was explicitly held not a suffi- 
 cient signature under the statute of frauds to bind the buyer 
 as to the lots signed " Do." 
 
 § 545. An omission of the auctioneer to enter the name 
 both of the buyer and seller in his sale-book is not remedied 
 by the fact that he makes, a partial memorandum of the 
 sale at the time. 
 
 But it was decided, in Stammers v. O'Donohue, 1 in Can- 
 ada, where a fatal omission was made, that subsequent writ- 
 ings by the seller ratifying the sale satisfied the statute of 
 frauds. 
 
 Thus, in that case (affirming the judgment of the court 
 below, which affirmed the decree of the court of chancery 2 
 on the facts stated), it was held that, notwithstanding the 
 vendor's name was not mentioned in the memorandum 
 signed by the auctioneer, his subsequent letters and admis- 
 sions were sufficient to render the contract binding. 
 
 This decision goes far beyond some well-considered cases, 
 and may be questioned whether it is a reasonable construc- 
 tion of the statute. "While the memorandum in respect to 
 ordinary contracts is held to be good if signed by the party 
 to be charged, and may be made up of different writings, 
 in sales by auction the agency element is so important an 
 ingredient as to require the strictest construction and proof. 
 
 The danger is, if too much latitude be allowed in such 
 cases, that the very mischief which the statute aims to pre- 
 vent may be augmented. 
 
 § 546. If an auctioneer sells goods without disclosing the 
 
 18 App. R., 161, JuneTerm, 1884; 2 28 Gr., 207; 1 Canadian L. T., 
 4 Canadian L. T., 375. 128. 
 
446 SALES. [chap. XXV. 
 
 name of his principal, the character and extent of the con- 
 tract he enters into with the purchaser depends upon the 
 conditions of sale, and what is said by the auctioneer at the 
 time. Thus, where an auctioneer sold by auction standing 
 corn with the straw, for an unnamed principal, the price to 
 be paid at once, and the crop to be removed immediately 
 after it- had arrived at maturity, at the purchaser's expense, 
 it was held that it was a contract by the auctioneer to give 
 the purchaser all proper authority to enter upon the land, 
 and to cut and carry away the corn and straw, but that 
 there was no actual warranty of the validity of ,±he title of 
 his principal to sell. 1 
 
 § 547. In general, an auctioneer is personally liable as 
 vendor unless he discloses the fact of his agency; and if he 
 discloses the name of his principal, but signs a written con- 
 tract in his individual name merely, which contract does 
 not, upon it's face, show that he was acting as the agent of 
 another, he is still personally bound by the contract. 
 
 But in Pinckney v. Hagadorn, 2 where the entry was sub- 
 scribed by the auctioneer in his own name, without any ref- 
 erence to his character as agent, and the question was raised 
 whether that was a sufficient signing within the meaning 
 of the statute of frauds, the court held that it was. 
 
 There Judge Sandford observed that the rule of law re- 
 quiring an agent to sign the name of his principal in the 
 execution of instruments is confined to writings under seal. 
 
 § 548. An auctioneer is personally liable for any loss oc- 
 curring by his dereliction of duty. 
 
 It is well settled that if through negligence an auctioneer 
 omits to ascertain and write down the name of the bidder 
 
 iWood v. Baxter, 49 L. T. Rep., "Wright v. Dannat, 2 Camp., 203; 
 
 45. See, also, 29 Alb. L. Jour., 98. Phillimore v. Berry, 1 Camp., 513; 
 
 In White v. Proctor, 4 Taunt., 209, Clarkson v . Noble, 2 U. C. Q. B., 
 
 it is held that if the highest bidder 361. 
 
 be an agent, and his name be writ- 2 1 Duer (N. Y.) R., 95. See, also, 
 
 ten down by the auctioneer, his Evans v. Wills, 22 Wend., 324; 
 
 principal is bound. See, also, Chap- Townsend v. Corning, 23 id., 435; 
 
 man v. Partridge, 5 Esp., 256; Townsend v. Hubbard, 4 Hill, 351. 
 
OHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 447 
 
 upon the fall of the hammer, and the bidder, being a 
 stranger to him, goes away, and the article is put up again 
 and brings a less price, the owner is entitled to recover of 
 the auctioneer the amount which was first bidden for the 
 article. 
 
 Illustration : In Townsend v. Yan Tassel l a horse was 
 put up at auction and knocked down to a bidder for $50. 
 The auctioneer, through negligence, did not take the name 
 of the person who bid, but merely called for the buyer to 
 make a deposit. JSTo person answered or appeared. 
 
 After the plaintiff had left, the auctioneer put up the 
 horse again and sold it for $37.50. 
 
 The general term, Daly, C. J., decided that it was the 
 fault of the auctioneer that the person who bid $50 was not 
 ascertained and held to the sale. That it was the bounden 
 duty of the auctioneer before proceeding any further to put 
 up the horse again, so that those present might know im- 
 mediately that no one having answered to the bid of $50, 
 the horse had not been sold, and that the bidding was still 
 open. That the plaintiff under these facts was not bound 
 to accept the reduced amount. 
 
 The judgment of the court below, dismissing the com- 
 plaint, was reversed. 
 
 There are numerous cases sustaining the general view 
 enunciated in the above case, 2 as also that the memoran- 
 dum must be made immediately. 
 
 § 549. Conditions or particulars, as they are sometimes 
 called, of sales by auction, are the terms upon which the par- 
 ties contract, and are binding if they are sufficiently made 
 
 1 8 Daly, C. C. P. E., 262. 6 Leigh, 16 ; White v. Crew, 16 Ga., 
 
 2 Bent v. Cobb, 9 Gray, 397 ; Mor- 416 ; Smith v. Arnold, 5 Mason, 
 
 ton v. Dean, 13 Met., 388; Gordon 414; Alna v. Hummer, 4 Greenl., 
 
 v. Sims, 2 McCord, Ch., 164; Burke 258; Linn Boyd Tobacco Ware- 
 
 v. Haley, 2 Gilm., 614; Pike v. house Co. v. Terrill, 13 Bush, 463 ; 
 
 Balch, 38 Me., 302, 311; Horton v. 3 Camp., 452; Flintoft v. Elmore, 
 
 McCarty, 53 id., 394; Harvey v. 18 U. C. C. P., 274. 
 Stevens, 43 Vt., 655; Brent v. Green, 
 
4±8 SALES. [chap. XXV. 
 
 known to the bidder at the time of the sale. They should 
 be clear and unambiguous. 1 
 
 It is not unusual for the seller of goods at auction to fix 
 certain conditions both as to the terms and manner of sale; 
 and these often involve questions more or less complicated. 
 
 Lord St. Leonards, in Payne v. Cave, 2 expressed the 
 opinion that a condition to the effect that no person shall 
 retract his bidding could not be enforced. He referred to 
 the difficulty suggested by Baron "Wood, in Jones v. Nanney, 3 
 that the statute of frauds presents an obstacle which cannot 
 be overcome by a condition of the sale or by agreement of 
 the parties. 
 
 § 550. One of the conditions in Jones v. Nanney 4 was, 
 that no person should retract his bidding " after it has been 
 taken down and declared by the auctioneer." Another was, 
 that the " purchaser shall pay to the auctioneer the duty 
 granted to her majesty on the sale of real estate." 
 
 In that case it appears that after other biddings the de- 
 fendant offered £4,000 for the property, which bid was taken 
 down by the plaintiff, who was the auctioneer. At that 
 point, before knocking down the hammer, he suspended the 
 sale for a while, as he said, "to give gentlemen time to con- 
 sider." In less than an hour afterwards he proceeded with 
 the sale, commencing at the defendant's bid, at the same 
 time stating that he would give " two minutes " more for 
 gentlemen to consider, and if there was no advance over the 
 
 1 State v. Keeler, 49 Mo., 548; $ at any bidding over $ , 
 
 Rhodes v. Ibberton, 4 DeG., M. & and no person shall retract his bid- 
 
 G., 787; Symons v. James. 1 Y. & ding." The authorities, however, 
 
 C. C. C, 487; Smith v. Ellis, 14 are quite meager on the effect of 
 
 Jur., 683; Hoffman v. Anthony, such conditions. Jones v. Nanney, 
 
 6 R. I., 282. , supra, presents this question in a 
 
 2 3 Term R., 148; Mesnard v. qualified form. See, also, Manser 
 Aldridge, 3 Esp. N. P. C, 271. v. Buck, 6 Hare, 443; Byrne v. 
 
 3 13 Price R., 76. In England Van Tienhoven, 5 C. P. D., 344; 
 conditions like the following are Crotenkemper v. Achtermeyer, 11 
 sometimes made : " No person shall Bush (Ky.), 222. 
 
 advance less than $ at any bid- * 13 Price R., 148. 
 
 ding under $ , no less than 
 
CHAP. XXV.J AUCTION SALES AND AUCTIONEERS. 449 
 
 £4,000 bid, he would knock the property down to the de- 
 fendant. The defendant at that point said, though the 
 auctioneer (plaintiff) did not hear him, that he would not 
 take the property. 
 
 There was no higher bidding and the property was struck 
 off to the defendant, who refused to sign any agreement or 
 complete the purchase. 
 
 The plaintiff (the auctioneer) having paid the crown duty 
 brought this action to recover the same from the defendant. 
 
 To make the defendant liable, said Hallock B., you must 
 show him to have been a purchaser, which you cannot do 
 unless there was a sale for all purposes. 
 
 Alexander, C. B., said: "The question is not whether he 
 (the defendant) may have behaved ill or not, but whether 
 he was a purchaser of the lots put up and was bound to 
 abide by his bidding. . . . If he was not bound by his 
 bidding, he was not liable to pay the auction duty." 
 
 Hallock, B., further observed : " In point of fact, how- 
 ever, there was no contract of sale. Then why might not 
 the defendant have retracted his bidding on the postpone- 
 ment of the auction ? " 
 
 The court decided that the defendant was not liable. It 
 would indeed be an evasion of the statute of frauds to hold 
 that a bidder, as such, is a purchaser, even where his name 
 is written down by the auctioneer before the striking down 
 of the hammer; or even after the hammer falls, unless with 
 the bidder's consent. 
 
 It seems evident, said the court, from the frame of the 
 condition, that the vendor did not consider the taking down 
 of the bidder's name a signing within the meaning of the 
 statute of frauds ; otherwise a condition against retracting 
 would have been useless. 1 
 
 Clearly, until the striking down of the hammer, and the 
 writing down the bidder's name, with the bidder's consent, 
 
 iEmmerson v. Heelis, 2 Taunt., self which authorizes the auction- 
 
 38; White v. Proctor, 4 Taunt., 209, eer to write down the bidder's 
 
 seem to hold that it is the bid it- name. 
 29 
 
450 SALES. [chap. XXV. 
 
 as required by the statute, the sale is not consummated so 
 as to constitute a contract enforceable by law. 
 
 § 551. The early case of Webster v. Hoban l presented 
 the question of conditions at an auction sale. There it was 
 formally stated that " the purchaser should secure the pur- 
 chase money, with interest, by his promissory notes, with 
 two approved indorsers, payable in six and twelve months; " 
 and that the purchaser " should be allowed thirty days to 
 comply with these terms, at which time, in case of com- 
 pliance, he was to receive a good and complete title to the 
 property, and on failing^o comply within the thirty days, 
 the property was then to be resold on account of the first 
 purchaser." 
 
 There was no resale, nor any deficiency shown as arising 
 from a resale. The plaintiffs contended, however, that the 
 remedy by a resale was merely cumulative, and did not 
 take away the right of action against the defendant for his 
 violation of the contract. 
 
 But Livingston, J., writing the opinion of the court, said : 
 " Such is not the opinion of this court. The vendee, by 
 the terms of sale, had an option of taking the estate after 
 it was bid off to him, and, in case of refusal, of having it 
 sold again on his account ; " and affirmed the judgment. 
 
 It seems to be settled that parol evidence of declarations- 
 of an auctioneer, contradictory of the written terms of sale, 
 ought not to be admitted ; it might introduce great uncer- 
 tainty, for instance as to titles derived under sales at auc- 
 tion. 2 
 
 § 552. Where horses were sold by auction, and the. cata- 
 logue contained certain conditions as to {inter alia) war- 
 ranty, and headed " special conditions of sale (in addition 
 to those under which these sales are held)," and on the 
 walls of the auction room large bills were posted, containing 
 other conditions headed " conditions of sale," the court held 
 that a purchaser of a horse at the sale must be bound by 
 
 1 7 Cranch R. (U. S.), 399 (1813). 2 Lessee of Wright v. Deklyne, 
 
 1 Peters, C. C. E., 204. 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 451 
 
 the conditions on the walls, although it was not evidenced 
 that he had seen them, other than as contained in the cata- 
 logue, and he maintained that the two sets of conditions 
 were inconsistent. 1 
 
 Upon a sale by auction subject to conditions of sale, the 
 auctioneer's entry in his book is void under the statute of 
 frauds, unless the entry contains such reference to the con- 
 ditions as to identify them upon production as being the 
 conditions mentioned therein. 2 
 
 § 553. In Peirce v. Corf 3 certain horses were sold at 
 auction, in accordance with a catalogue, to which conditions- 
 of sale were annexed. A horse was put up for sale and 
 knocked down to C, and the auctioneer's clerk at the time, 
 signed, not the catalogue, but a ledger, in which the horse was 
 specified, but not in the manner in which it was specified in 
 the catalogue, nor did it refer to the conditions of the sale. 
 
 It was held that the plaintiff could not recover, notwith- 
 standing the purchaser subsequently wrote to the auc- 
 tioneer, returning the horse, " bought at your sale to-day," 
 as not answering the warranty of the catalogue ; the letter 
 did not state the price, and it was not competent to connect 
 it with the ledger, where alone the price was stated, so as 
 to make a sufficient memorandum. 
 
 § 554 In Doolin v. Ward 4 it was declared that an agree- 
 ment between two persons not to bid against each other at 
 an auction sale is void as against public policy. It is un- 
 conscientious and tends to cause the property to be sold at 
 an undervalue, or chill the sale, or stifle competition. But 
 
 1 Macdonald v. Henderson, 10 C. low v. Cotterell, 25 Alb. Law Jour., 
 
 of S. Cas., 95 (S. C). 149. 
 
 2Reshton v. Whatmore, 8 L. R. *6 Johns. (N. Y.) R., 195 (1810); 
 
 Ch. Div., 467. Wilbur v. How. 8 id., 444; 4 N. Y. 
 
 3 9Q. B., 210, L. R. ; Allen v. Com. L. R., 599; Thompson v. Dav- 
 
 Bennett. 3 Taunt., 169. As to ies, 13 id., 112; Gardiner v. Morse, 
 
 signature of auctioneer's clerk, see 25 Me.. 140; Hashes v. Cutchford, 
 
 Dyasu Stafford, 7 L. R. Jr., 590; 7 Ala., 189; Hook v. Turner, 22 
 
 Alb. Law Jour., vol. 9, 278; Shad- Mo., 333; Cocks v. Izard, 7 Wall., 
 
 559. 
 
452 SALES. [chap. XXV. 
 
 it seems not to be illegal if the parties desire to be purchas- 
 ers in good faith. 1 In that case certain articles were ad- 
 vertised to be sold at public auction. A. and' B. agreed not 
 to bid against each other ; but A. was to buy the articles 
 and divide them equally with B. The goods were bought 
 by A. and he afterwards refused to divide them, or give to 
 B. one-half the profits of the purchase. This action was 
 brought to recover the one-half part of the profits. 
 
 The contract was held to be void for want of considera- 
 tion, as being against public policy, and as it tended inju- 
 riously to affect the character and value of sales by auction. 
 It was nudum pactum. 
 
 So in Wilbur v. How, supra, where a contract for making 
 a road was put up for sale at auction, and A. and B. agreed 
 that one of them should bid, and if the contract was struck 
 off to him the other should have an equal share in it. It 
 was struck off to B., and A. brought his action for a breach 
 of the agreement between them; the court held that the 
 contract was nudum pactum, and a fraud on the vendor. 
 
 § 555. So in the recent case of Parsons v. Phelan, 2 where 
 the plaintiff and the defendant agreed orally that the de- 
 fendant should bid in, at an auction sale, and buy od joint 
 account, in equal shares, certain property; the court said 
 there was not a scintilla of evidence to show that the de- 
 fendant agreed to bid for and buy one undivided half of the 
 property for and in behalf of the plaintiff, as his agent ; but 
 it was shown that the defendant should buy the property 
 " on joint account." Under these circumstances the con- 
 tract was held to be within the statute of frauds, and the 
 action not maintainable. 
 
 In Holmes v. Holmes 3 the court said : " To render them 
 
 1 Jenkins v. Prink, 30 Cal., 586; 2 134 Mass., 109. 
 
 Kearney v. Taylor, 15 How. (U. S.), 3 3 Rich. Eq., 61 ; National Bank 
 
 519; Slaters. Maxwell, 6 Wall., of M. v. Sprague, 20 N. J., 159, 169. 
 
 268; "Jenkins v. Hogg, 2 Const. See, also, Galton v. Enness, 8 Jur., 
 
 Ct. (S. Car.), 821 ; Switzer v. Skiles, 507 ; 13 Law J. N. S. V. C. B., 38. 
 
 3 Gilman, 529 ; Re Carew's Estate, 
 
 4 Jur. N. a, 1290; 26 Beav., 157. 
 
CHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 453 
 
 (i. e., joint or partnership bidding) unlawful and void, there 
 must be a fraudulent intent to depress and chill the sale, to 
 obtain the property at an under value, or to obtain other 
 undue and unconscientious advantages. An estate might 
 be offered for sale which neither of two joint bidders would 
 be able separately to purchase. Or, it might be that neither 
 of two joint bidders, though able as to pecuniary means, 
 would desire to purchase the whole of the estate offered for 
 sale, though each would be desirous to become the owner 
 of a part. Such persons, if not permitted to unite in their 
 bidding, would not enter into the competition at all. To 
 adopt so stringent a rule as that contended for, in reference 
 to sales in chancery, would in many instances have the 
 effect of diminishing instead of enhancing the prices." 
 
 § 556. A puffer is a person appointed to bid on the part 
 of the owner. 
 
 No principle is better settled than that by-bidding and 
 the employing of puffers is fraudulent; that is, persons to 
 secretly work in the interest of the owner of goods sold at 
 auction, so as to enhance the price. 
 
 It prevents buyers from meeting on equal terms. 
 
 It violates a leading condition of the contract of sales at 
 auction, that the goods shall be sold to the highest bidder — 
 the highest real bidder. 
 
 It is against public policy. 1 
 
 The highest real bidder, if misled or deceived by such a 
 proceeding, will not be bound to complete the contract, for 
 no liability attaches. 
 
 § 557. Some cases hold that the owner of goods to be 
 sold at auction may lawfully employ a person to prevent 
 the goods from being sacrificed ; but biddings by such per- 
 son must be real and sincere, not a mere artifice to mislead 
 
 i Veazee v. "Williams, 8 How. (TJ. Nat'l Fire Ins. Co. v. Loomis, 11 
 S.) E., 154; 3 Story R., 623; People Paige, 431 ; 30 & 31 Vict., ch. 48, 
 v. Lord, 6 Hun, 390; Jackson v. sec. 3; Mortimers. Bell, 1 Ch., 10; 
 Morter, 82 Penn. St., 291 ; Fuller v. Dimmock v. Hallock, 2 id., 21 ; Gil- 
 Abrahams, 3 B. & B., 116; Eaynes liat v. Gilliat, 9 Eq., 60; Grice v. 
 v. Crowder, 14 U. C. C. P., Ill; Kendreck, 5 Q. B., 340. 
 
454 SALES. [CHAP. XXV. 
 
 others. 1 Kbr is it against public policy if it be done bona 
 fide. The employment of a bidder by the owner is or is 
 not a fraud according to the circumstances tending to show 
 innocence of intention or a fraudulent design. 
 
 But even this kind of bidding was declared at "Westminster 
 Hall, in Crowder v. Austin, 3 to be against sound policy. 
 Doubtless the safer rule would be in all cases, that no per- 
 son should be employed secretly to bid for the owner 
 against a bona fide bidder at a public auction without an 
 announcement of the fact. Chancellor Kent recognized this 
 rule as the safest to be followed. 
 
 At any auction sale, if the owner desires to bid, that fact 
 ought to be distinctly set forth in the condition of sale, so 
 that bidders can act understandingly. " But if a mere artifice 
 in combination with the owner to mislead the judgment and 
 inflame the zeal of others, it would be a fraudulent and void 
 sale." 3 
 
 Text-writers and authoritative cases generally hold that 
 the seller may reserve to himself the right of bidding, or 
 may employ a person to bid for him, but notice of such in- 
 tention must be given at the sale, otherwise he commits a fraud 
 and the sale may be avoided} 
 
 But the owner has a perfect right to limit the price at 
 which his goods may be sold. 3 
 
 § 558. The nature of auction sales implies that the article 
 sold should be struck off to the highest real bidder. There- 
 
 i Walsh v. Barton, 24 Ohio St., Blackford v. Preston, 8 T. R., 93, 
 
 38; Lee v. Lee, 19 Mo. R., 420; S5; Rex v. Marsh, 3 Y. & J., 331; 
 
 Latham v. Morrow, 6 B. Mon. R., Benjamin on Sales, 370. 
 
 630; Moncrieff v. Goldsborough, 4 5 Hazel v. Dunham, Hall, 655, 
 
 H. & McHen., 282; Phippen v. 146; Snell's Prin. of Eq., 489. 
 
 Stickney, 3 Met. (Mass.), 387 ; Steele Where an execution creditor 
 
 v. Ellmaker, 11 Serg. & R., 86 
 Wolfe v. Luyster, 1 Hall, 146 
 Morehead v. Hunt, 1 Dev. Eq., 35 
 
 adopted means to prevent competi- 
 tion at a sheriff's sale in order to 
 secure the goods for himself at a 
 
 , Woods v. Hall, 1 id., 411. nominal price, the sale was avoided. 
 
 2 3Bing. R., 368. Troup v. Wood, 4 Johns. Oh. R., 
 
 3 2 Kent, 538, 539. 228,254. 
 
 4 Howard v. Castle, 6 T. R., 642; 
 
CHAP. XXV. J ATJCTION SALES AND ATTCTIONEEES. 455 
 
 fore all such sales should be conducted in good faith ; for 
 the public are brought together upon a confidence that the 
 goods sold will be disposed of in that manner. And this 
 safe principle would be violated if the owner were allowed 
 secretly to enhance the price by a person employed for that 
 purpose. And yet tricks and practices of this kind do occur, 
 and frequently good men give in to the ways of the bad and 
 dishonest in their own defense. Such practices are a fraud 
 upon the sale and upon the public. 
 
 The buyer should not be misled by any secret dealing or 
 manoeuvering by the seller to enhance the price of the article 
 sold. Custom, however, may go far to govern the conduct 
 of such sales. But on the broad and sound principles of 
 justice and equity the seller in all cases should be required 
 to announce that he reserves the right, if he desires the 
 right, of bidding his goods in at a price to be limited. 
 Every person then would stand on common ground. 
 
 Thus, in Bexwell v. Christie, 1 where the seller falsely de- 
 scribed his goods offered at auction as " goods of a gentle- 
 man deceased, and sold by order of his executor," Lord 
 Mansfield pronounced it a fraud on the public. That " a 
 bidding for the owner in the manner contended for, agree- 
 able to the directions given in this case, would have been a 
 fraud upon the sale; and consequently his action against 
 the defendant as auctioneer cannot be maintained." 
 
 Tilghman, 0. J., in Steele v. Ellmaker, 2 in referring to 
 the somewhat sweeping opinion of Lord Mansfield in the 
 above case, questioned whether the tone of his morality was 
 not too lofty for the common transactions of business. 
 
 There have been men, however, who thought it immoral 
 to purchase an article at less than its real value. In fact 
 such was the conviction of the famous Roman lawyer, 
 Sceavola, who, having purchased a commodity at less than 
 its value, held himself bound to pay the difference. It will 
 
 ilCowp., 395. Bramley v. Alt, 3 Vesey, Jr. R., 
 
 2 11 Serg. & Eawle, 88. See, also, 620, 625. 
 
456 SALES. [chap. XXV. 
 
 probably be a long time before an act of tbis kind will be 
 recorded of a bidder at a modern auction sale. 
 
 § 559. It is fraudulent for tbe vendor at an auction sale of 
 goods, wares, or merchandise, as of other property, to em- 
 ploy by-bidders or puffers, to enhance the price. The Eng- 
 lish cases also hold that, whether the sale comes under the 
 fourth or the seventeenth section of the statute of frauds, 
 the same rule applies. In Trust v. Delaplaine, 1 where a 
 picture was sold at auction, and it was shown that the price 
 was enhanced by the vendor's bidding at the sale, Ingra- 
 ham, First J., explicitly held that underbidding by the 
 owner or auctioneer vitiates the sale. 
 
 In Mortimer v. Bell 2 one of the conditions was that the 
 highest bidder should be the purchaser; but nothing was 
 said as to bidding on behalf of the vendors. An agent of 
 the vendors bid $2,500; the auctioneer then bid $2,600, and 
 the agent and the auctioneer continued bidding against 
 each other until the biddings reached $3,600, when the de- 
 fendant bid $3,650, and the property was knocked down to 
 him. 
 
 It was held, reversing the decision appealed from, that 
 the vendors could not enforce the contract, tainted as it 
 was with fraud. But, query: Suppose the bid of $3,600 had 
 been by a real bidder, would the sale have been vitiated? 
 
 § 560. In The National Bank of Metropolis v. Sprague, 8 
 where a real bid preceded that of the bid at which the 
 property was knocked down, notwithstanding a puffer had 
 bidden previously, the sale was- held to be valid. The court 
 intimated, however, that where a bid next preceding the 
 real bid is that of a puffer, the sale would be voidable by 
 the purchaser. But, judging the matter from an equitable 
 standpoint, it would seem to be most just, and public policy 
 would seem to dictate, that in every case where by-bidders 
 
 1 3 E. D. Smith (N. Y.), 219. was held that in a sale by a trustee 
 
 2 1 Ch. Dec, 10. he is entitled to refuse any bid 
 
 3 5 C. E. Green (N. J.), E. In which will manifestly frustrate the 
 Gray v. Veers, 33 Maryland R., it purposes of the sale. 
 
OHAP. XXV.] AUCTION SALES AND AUCTIONEERS. 457 
 
 or puffers are employed to augment. the price, the sale. should 
 not only be voidable, but absolutely void. 
 
 § 561. In either case (whether a sale of goods or real 
 estate) the writing of the name of the highest bidder in 
 the sale-book, by the auctioneer, immediately on striking 
 down the hammer, is requisite to constitute a signing within 
 the statute of frauds. The employment of persons secretly 
 to bid up the property at auction, whether of goods or 
 land, is equally fraudulent. 
 
 Fisher v. Hersey 1 is an illustration. There, a motion 
 was made to set aside a sale of land on the ground that the 
 plaintiffs were induced to bid a larger sum than they other- 
 wise would have, by reason of the fraud of the defendant 
 Herse} r in employing one Whittier, as a " puffer," to en- 
 hance the price ; and on other grounds. 
 
 The referee reported that the conduct and representa- 
 tions of Whittier deceived the plaintiffs and were a fraud 
 upon them. The special term made an order setting aside 
 the sale, unless the defendants should stipulate that the 
 plaintiffs' bid be reduced to an amount stated, and stand at 
 that sum. An appeal was taken therefrom to the general 
 term. There, Smith, J., said: "Laying out of view the 
 misrepresentations made by Whittier before the sale, the 
 conduct of Hersey and Whittier, at the sale, in pretending 
 to be strangers to each ' other, according to their precon- 
 certed arrangement, shows very clearly that the bid of 
 "Whittier was procured by Hersey to be made with the de- 
 sign of taking advantage of the eagerness of the plaintiffs 
 to enhance the price. The employment of a puffer for 
 such a purpose, and not merely as a defensive precaution 
 against an undue sacrifice of the property, is a transaction 
 that cannot be justified by a court of equity." 
 
 It was further held that the conduct of the defendant, 
 Hersey, and of his instrument, Whittier, was a fraud upon 
 
 117 Hun (N. Y.) E, 370; Smith v. Clarke, 12 Ves., 477; Veazie v. 
 Williams, 8 How. (TJ. S.) E, 148. 
 
458 SALES. [chap. XXV. 
 
 the plaintiffs, and that they were entitled to be released 
 from their purchase. 
 
 § 562. A sale by auction, " without reserve," according 
 to all the cases, both at law and in equity, means that 
 neither the vendor, nor any person on his behalf, may bid 
 at the auction, and that the property shall be sold to the 
 highest bidder, whether the sum bid be equivalent to the 
 real value or not. 1 
 
 Martin, B., in "Warlow v. Harrison, 2 says : ""We think that 
 the auctioneer who puts property up for sale upon such a 
 condition pledges himself that the sale shall be without re- 
 serve; or, in other words, contracts that it shall be so; and 
 that this contract is made with the highest bona fide bidder, 
 and in case of a breach of it, he has a right of action against 
 the auctioneer." 
 
 And so it would be held in " positive " sales by auction. 3 
 
 § 563. It was long ago settled that a sale of stolen goods 
 at auction passes no title, and the auctioneer is liable to the 
 real owner, notwithstanding the proceeds of the sale have 
 been paid over to the thief, without notice of the felony. 
 
 Nelson, C. J., observes, in the noted case of Hoffman v. 
 Carow, 4 that there can be no doubt that the felon did not 
 
 1 Benjamin on Sales, § 472 ; market overt, but such rule has no 
 Thornett v. Haines 15 M. & W., application here. See Saltus v. 
 367. Everett, 20 Wend., 267; 13 N. Y. 
 
 2 1 E. & E., 295; 29 L. J. Q. B., Com. L. R., 850, and note. As to 
 14 ; Denton v. The Great Northern the liability of an auctioneer who 
 Bail way Company, 5E.&B,, 860. sells stolen goods, see Wheelwright 
 See, also, Towle v. Leavitt, 23 N. v. Depeyster, 1 Johns., 479; Dame 
 H., 360; Kinney v. Showdy, 1 Hill v. Baldwin. 8 Mass., 518; Towne v. 
 (N. Y.), 544; Den v. Zellers, 2 Collins, 14 id., 500; Griffiths. Fow- 
 Halst., 153. ler, 18 Vt., 300; Browning v. 
 
 3 Walsh v. Barton, 24 Ohio St. Magill, 2Harr. & J., 308; Bucken- 
 R., 28. ridge v. McAfee, 54 Ind., 141; 
 
 *20 Wend. R., 21; affd. 22 Stone v. Marsh, 6 Barn. & C, 551; 
 
 Wend., 285; 13 N. Y. Com. L. R. , Ventress v. Smith, 35 U. S. (10 
 
 763. But see Rogers v. Huie, 2 Peters), 161 ; Bryant v. Whitcher, 
 
 Cal., 571. An exception to the 52 N. H., 158; Coombs v. Gordon, 
 
 above general rule exists in Eng- 59 Me., Ill; Spooner v. Holmes, 
 
 land, in respect to sales made in 102 Mass., 56; Jones v. Nellis, 41 
 
CHAP. XXV. J AUCTION SALES AND AUCTIONEERS. 459 
 
 acquire any title to the goods, and could not transfer title 
 even to a bona fide purchaser. Therefore, as between the 
 owner and the purchaser, the owner presents both legally 
 and equitably the highest and best title. The owner is not 
 in fault, as the property was taken without his knowledge 
 or consent. 
 
 On appeal the questions involved were elaborately dis- 
 cussed, and able opinions were written by several members 
 of the court. In favor of affirmance of the judgment were 
 the chancellor, and Senators Clark, Edwards, Hunt, Hunter, 
 Jones, H. A. Livingston, Nicholas, Paige, Peck, Powers, 
 Skinner, Speaker, Sterling, Yerplanck and Wager; opposed, 
 were Senators Furman, Hawkins, Hull, Maynard and 
 Works. 
 
 § 564. The auctioneer may exercise a reasonable discre- 
 tion as to declining to receive a bid of a person under cer- 
 tain circumstances. 
 
 Thus, it has been held that he may refuse to take or 
 recognize the bid of a minor, lunatic, or of a person who is 
 irresponsible; nor would such person have any remedy, un- 
 less by reason of some special condition or terms of the 
 sale. 1 
 
 § 565. A very novel case is that of Harris v. Nickerson. 2 
 There an action was brought to recover 21. 16s. 6d. for two 
 days' loss of time by the plaintiff, " at the special instance 
 and request of the defendant," in attending at a public 
 sale by auction, advertised by the defendant in the London 
 newspapers to be held at the town of Bury St. Edmunds, 
 on a stated day, for the disposal of certain goods and office 
 fittings under bill of sale, and on the faith of which the 
 plaintiff duly attended, and was ready to purchase in pur- 
 
 111., 482; Easton v. "Worthington, any title. Cary v. Hotaling, 1 Hill, 
 
 5 Serg. & R., 130; Lancet. Cowan, 311, note. 
 
 1 Dana, 195 ; Hosack v. Weaver, 1 1 Kinney v. Showdy, 1 Hill (N. 
 
 Yeates, 478; Roland v. Gundy, 5 Y.), 544; Den v. Zellers, 7 N. J. 
 
 Ohio, 202. Neither does a delivery Law, 153 ; Holden v. Jackson, 11 
 
 of goods procured by fraud pass U. C. C. P., 543. 
 
 2 8 Queen's Bench, 286 (1873). 
 
460 SALES. [chap. XXV. 
 
 suance of such request and public notification aforesaid ; but 
 the defendant, in breach thereof, did suddenly, and without 
 notice, withdraw the said goods and office fittings from the 
 sale, and by which the plaintiff lost not only his two days' 
 time and railroad fare, but the additional expense of two 
 days' board and lodging. 
 
 The sale was advertised as stated by the plaintiff. The 
 plaintiff had a commission to purchase the office furniture 
 advertised. 
 
 The furniture was not put up for sale. The judge gave 
 judgment for the plaintiff. The defendant appealed. 
 Blackburn, J., held that the judge was wrong. The prop- 
 osition of the plaintiff was considered a startling one, " un- 
 less every declaration of intention to do a thing creates a 
 binding contract with those who act upon it, and in all 
 cases after advertising a sale the auctioneer must give no- 
 tice of any articles that are withdrawn, or be liable to an 
 action, we cannot hold the defendant liable." 
 
 Quain, J"., concurred. He thought the proposition of the 
 plaintiff was " destitute of all authority." That it would 
 introduce an extremely inconvenient rule of law to say 
 that the auctioneer is bound to give notice of the with- 
 drawal of goods, etc. Archibald, J., was of the same 
 opinion. 
 
 § 566. A court of equity will set aside a sale made at auc- 
 tion where a mistake in a contract is induced by innocent 
 misrepresentation, whether made by one only or mutually 
 made. 1 
 
 And the doctrine is universally adhered to, that he who 
 misleads the confidence of another by false statements in 
 the substance of a purchase shall be the sufferer, and not 
 the innocent party. 2 
 
 Thus, in Torrence v. Bolton, 3 where a bidder at an auc- 
 
 1 Kennedy v. Panama Mail Co., 3 L. R., 14 Eq., 124; 8 Ch., 118. 
 
 L. R., 3 Q. B., 580. See Champlin v. Lay ton, 6 Paige, 
 
 2 Doggett v. Emerson, 3 Story, 189; Smith v. Richards, 13 Peters, 
 
 733. 36. So statements by the auction- 
 
CHAP. XXT.J AUCTION SALES AND AUCTIONEERS. 4:61 
 
 tion sale was deaf and did not hear the conditions read as 
 to the particulars of the property sold, and where the par- 
 ticulars as advertised were misleading, the court relieved 
 the purchaser. 
 
 In general, the printed conditions of sales by auction are 
 binding on the buyer and seller. 1 
 
 eer, contrary to the printed condi- tradict the printed conditions, 
 tions of sale, are invalid, and will Gunnis v. Erhart, 1 H. Bl., 289. 
 not be admitted in evidence to con- iMesnard v. Aldridge, 3 Esp., 
 
 271. 
 
CHAPTER XXVI. 
 
 OF AUCTION SALES AND AUCTIONEERS — CONCERNING THE 
 RETRACTION OP A BID. 
 
 § 567. Of the highest bidder ; a bid is an offer. 
 
 568. Contract by the bidder ; mutuality. 
 
 569. "When does the offer at an auction become a contract. 
 
 570. When may the bidder retract his bid. 
 
 571. Does the offer or bid become a contract upon the fall of the 
 
 hammer, or upon the auctioneer writing the bidder's name in 
 his sale-book. 
 
 572. Mutuality necessary ; auction sales within the statute of frauds ; 
 
 memorandum in writing requisite. 
 
 573. The authority of a broker or agent may be countermanded be- 
 
 fore he has signed a contract ; law writers on the subject of 
 retraction of a bid. 
 
 574. The knocking down of the hammer by the auctioneer, under the 
 
 principles of the common law, would make a binding contract ; 
 but query, whether so under the statute of frauds. 
 
 575. The entry constitutes the contract ; Gill v. Bicknell. 
 
 576. The same subject ; Morton v. Dean. 
 
 577. Case in point, Ecroyd v. Davis, holding that authority of auc- 
 
 tioneer to sign on behalf of purchaser is revocable before act- 
 ual signing. 
 
 578. Contract not complete until the statute of frauds complied with ; 
 
 Pike *b. Balch ; entry in sale-book a prerequisite. 
 
 579. Where there is a mistake as to price ; acceptance necessary. 
 
 580. Effect of bidder's name being written down by the auctioneer 
 
 before the hammer is knocked down. 
 
 581. Deductions from the cases. 
 
 § 567. The highest bidder at an auction sale is the per- 
 son who, in good faith, bids the largest price. If the bid- 
 ding is in bad faith, it follows as a necessary consequence 
 that it is misleading and void. 
 
 A bid is a mere proposal or offer, and the acceptance of 
 such offer is signified by the act of the auctioneer knocking 
 down the hammer. Down to that time, at least, the auc- 
 
CHAP. XXVI. J AUCTION SALES BETKACTION OF BID. 463 
 
 tioneer is solely the agent of the seller. 1 And whether the 
 sale has been completed or not depends upon the mutuality 
 of the parties, and the strict compliance with the require- 
 ments of the statute of frauds, as all such sales fall within 
 the direct operation of the statute, and the law is strictly 
 construed. 
 
 § 568. Mr. Blackburn says it is established that the high- 
 est bidder at an auction, by the act of bidding, himself 
 makes a contract of sale at that price subject to the condi- 
 tions of sale, and he gives the auctioneer authority to sign 
 that contract so made. 
 
 " But," he says, " it is plain that neither auctioneer nor 
 clerk has any authority from the bidder to make a con- 
 tract for him. The bidder makes the contract himself, and 
 all he authorizes is that the contract actually made shall 
 then be signed. If, therefore, the auctioneer signs 'a con- 
 tract, omitting or misstating the conditions of sale, he has 
 not pursued his authority, and the bidder is not bound, 
 though the contract on the face of it is complete." 
 
 It is also settled by abundant authority that a contract of 
 sale implies a bargain, or mutual understanding and agree- 
 ment between the parties as to terms. 2 
 
 § 569. The cases and authorities accord in this, that the 
 bidder may retract his bid at any time before the goods 
 are struck off. In other words, until the consent to the 
 sale is signified by the knocking down of the hammer, there 
 is no mutual agreement to a definite proposition. But, say 
 many cases, as soon as the hammer is struck down on a 
 bona fide bid, that moment the bargain is concluded, and 
 the seller has no right afterward to accept a higher bid, 
 nor the buyer to withdraw from the contract. 3 
 
 It would seem, in view of some well considered cases 
 and authorities, that this doctrine partakes largely of the 
 
 i Williams v. Poor, 3 Cranch, C. 3 Cook v. Oxley, 3 Term R., 654 ; 
 
 C. R., 251; Bateman on Auctions, 20. Adams v. Lindsell, 1 Barn. &Ald., 
 
 2 Blackburn on Sales, § 78 ; Steph- 681 ; Story on Sales, § 461. 
 en'sComm., vol. 2, p. 67. 
 
464 SALES. [CHAP. XXVI. 
 
 common law principle governing contracts, and ignores the 
 prime requirements of the statute of frauds. 
 
 It is doubtless true, on general principles, that when a 
 person bids at an auction, he offers to pay a given price for 
 the thing bidden on, and by implication authorizes the auc- 
 tioneer to sign a memorandum containing the terms of that 
 offer. If the offer becomes a contract, which according to 
 some authorities it does upon the fall of the hammer on the 
 highest real bid, the immediate entry thereof by the auc- 
 tioneer in his sale-book is a valid memorandum of the con- 
 tract if made in strict compliance with the statute of frauds. 
 The auctioneer is, for this purpose, the agent of Both the 
 vendor and vendee, and his writing down the name of the 
 highest bidder in his sale -book or catalogue, or both, as 
 the case may be, is held to be a sufficient signature within 
 the statute of frauds. 1 
 
 § 570. While the foregoing propositions are sustained by 
 several decisions, the question arises whether the bidder 
 may not retract his bid after the fall of the hammer, and 
 before the auctioneer has written his name in the sale-book ? 
 
 The court, in a leading English case, 2 held that every bid 
 at an auction sale is simply an offer on the part of the bid- 
 der, which is not binding until acceptance ; and that a bid- 
 der can retract his bid at any time before the striking down 
 of the hammer. But does the conclusion reached respect- 
 ing the right of the bidder to retract his bid go as far as 
 sound reasoning would seem to dictate or justify, in view of 
 the requirements of the statute of frauds ? 
 
 A parol agreement is good, but under the statute the evi- 
 
 1 Kenworthy v. Scofleld, 2 B. & Hersey, 17 Han (N. Y.), 370. It 
 C, 945; Emmerson v. Heelis, 2 has been considered doubtful if the 
 Taunt., 38; White v. Proctor, 4 id., usual conditions against retracting 
 209, 409 ; Campbell on Sales, 223. biddings could, in the case of an 
 
 2 Payne v. Cave, 3 Term R., 148 ordinary sale by auction, be en- 
 (1789) ; Warlow v. Harrison, 1 El. forced. Jones v. Nanney, 13 Price 
 & EL, 295; 6 Term R., 642; Towle R., 99. 
 
 v. Leavitt, 23 N. H., 360; Fishery. 
 
CHAP. XXVI. J AUCTION SALES KETEACTION OF BID. 465 
 
 dence of it must be in writing, in default of part payment 
 or receipt of part of the goods sold. 
 
 In general, when the seller at an auction offers his g^ods 
 for sale and a proposing buyer answers and offers to pur- 
 chase at a stated price, the auctioneer, bringing down his 
 hammer, signifies his assent to the price offered. This act 
 on the part of the auctioneer is as much as to say, and no 
 more, " Your offer is accepted, it's a bargain." But the 
 statute seems to require something more; it requires some 
 memorandum in writing of the bargain, to be subscribed by 
 the party to be charged or by his lawfully authorized agent. 
 If then the buyer, after the fall of the hammer, refuse per- 
 sonally to sign the memorandum, it would seem that he 
 cannot be made to do so, nor can the auctioneer sign for 
 him against his objection. 
 
 Hence it would seem to follow that, if the principal in 
 such case refuse to sign, he possesses the legal right to with- 
 draw or withhold his agent's {quasi agent's) authority to 
 sign. The agent thereunto lawfully authorized, in the lan- 
 guage of the statute, must be a person possessing authority 
 to sign, and such authority must actually exist at the time 
 of the signing. Therefore, logically, it would seem that if 
 the striking down of the hammer is followed immediately 
 by direction from the bidder to the auctioneer not to sign 
 for him, or a refusal by the bidder to sign, the auctioneer 
 cannot bind the bidder by signing his name, for the pre- 
 sumption of agency in the auctioneer is not borne out by 
 the facts. 1 
 
 The right of retraction in such a case would seem to be 
 not only in accordance with common sense, but in accord 
 with the statute of frauds of several states. 
 
 By the doctrine contended for in several cases, that the 
 highest real bidder is not bound unless the auctioneer has 
 made a memorandum in sedulous compliance with the stat- 
 
 1 4 Canadian Law T., 562. 
 30 
 
466 SALES. [chap. XXVI. 
 
 ute, it would seem to follow by parity of reasoning that the 
 principle herein advanced is sustainable. 1 
 
 The simple question is, whether the test that a binding 
 contract has been made, is the knocking down of the ham- 
 mer on a oonafide bid, or the writing of the name of the 
 bidder in the sale-book by the auctioneer. 
 
 A review of the cases will be found interesting. 
 
 § 571. In general the knocking down the hammer upon 
 the highest real bid is the signification by the seller, as well 
 as the presumption of authority on the part of the auc- 
 tioneer, to sign the bidder's name. 
 
 But a question involving some doubt under the decisions 
 is, whether the highest real bidder becomes liable as pur- 
 chaser upon the hammer being knocked down, or upon the 
 bidder's name being written by the auctioneer in his sale- 
 book? 
 
 In other words, is the act of the striking down the ham- 
 mer tantamount to the bidder's signing a memorandum of 
 the contract, and is the authority of the auctioneer as 
 agent of the bidder at that point irrevocable ? Quite clearly 
 not, it would seem by some authorities. In accordance 
 with the dictates of common sense, the retraction of the 
 offer or bid, before the auctioneer has written down the 
 bidder's name in his sale-book, even after the fall of the 
 hammer, would be sufficient to relieve him from liability, 
 and that in such a case no action would lie ; for the auc- 
 tioneer being solely the agent of the seller until the sale is 
 completed, the bidder's renunciation of the auctioneer's 
 agency, as far as he is concerned, ought, ex aequo et bono, to 
 absolve him from liability. For, according to some cases, 
 the auctioneer does not become the agent of the buyer un-. 
 til he has written down the name of the buyer in his sale- 
 book. And according to the statute before referred to, of 
 
 1 Tallman v. Franklin, 14 N. Y., 358; Coles v. Brown, 10 Paige, 526; 
 584 ; Smith v. Arnold, 5 Mason, 414 ; Pinckney v. Hagadon, 1 Duer, 89. 
 Mews v. Carr, 38 Eng. L. & Eq., 
 
OHAP. XXVI.] AUCTION SALES RETRACTION OF BID. 467 
 
 certain states and territories, as to auction sales, it is provided 
 that whenever the auctioneer " enters in a sale-book a mem- 
 orandum" specifying the particulars of the sale, it shall be 
 deemed a note of the contract of sale within the statute. 
 
 % 572. It is a principle of construction running through 
 all the cases, that mutuality applies equally to auction sales 
 as to other contracts of sale. 
 
 Hence, to constitute a valid and binding contract, the 
 mutual assent of the vendor and vendee is essential, and 
 must be so intended at the time. 
 
 In this connection it becomes important to inquire in 
 what particular manner and to what extent the necessary 
 consent must be manifested, and to distinguish between a 
 mere offer by the one party not accepted by the other, and 
 a mutual contract which neither party can retract. 1 An 
 unaccepted offer to enter into a contract is not binding, nor 
 can it give rise to any cause of action. Hence, if one per- 
 son offers to sell goods to another, there is no binding force 
 to such offer until the same has been accepted by the other. 
 
 Now, auction sales are not only adjudged to be within 
 the statute of frauds, but a memorandum in writing of the 
 sale is required to be subscribed by the auctioneer or the 
 party. If then the bidder, immediately upon the hammer 
 being knocked down, and before his name is written down, 
 retracts his bid and declines to allow the auctioneer to sign 
 for him, would he be bound? Under a reasonable construc- 
 tion of the statute it may be seriously questioned whether 
 he could in any case be liable as the purchaser until the 
 memorandum is actually subscribed with his consent. 
 
 Thus in well considered cases it is held that a bid at an 
 auction sale is like an offer before acceptance, and when the 
 
 1 Potts v. Whitehead, 8 C. E. 566 ; Gowing v. Knowles, 118 Mass., 
 
 Green (N. J.), 512; Carr v. Duval, 232; Jenness v. Mt. Hope Iron Co., 
 
 14 Peters, 77; Abbott v. Shepherd, 53 Me., 20; Solomon v. Webster, 4 
 
 48 N. H., 16; Bruce v. Bishop, 43 Cal., 353; Sourwine v. Truscott, 17 
 
 Vt., 161; Thurston v. Thornton, 1 Hun, 432; Utley v. Donaldson, 94 
 
 Cush., 89 ; Smith v. Gouly, 8 Allen, U. S., 29. 
 
468 SALES. [OHAP. XXVI. 
 
 bid is withdrawn before its acceptance there is no contract, 
 and the bidder cannot be regarded in any sense as the pur- 
 chaser. 1 
 
 § 573. Mr. Bateman, in his excellent treatise on the law 
 of auctions, says: " It may be doubted, indeed, whether the 
 bidder may not retract his offer in those cases where a 
 memorandum is required by the statute of frauds, at any 
 time before the written entry is actually made by the auc- 
 tioneer" 2 
 
 In the cases cited in Campbell's Reports 3 it is held that 
 the authority of the broker may be countermanded at any 
 time before a memorandum of the contract of sale is writ- 
 ten and signed by him, pursuant to the statute of frauds, 
 although he has previously entered into a verbal agreement 
 to sell the goods. 
 
 Sales by auction, except such sales as are held under order 
 of the court, are not only within the statute of frauds, but 
 are governed by the same principles, of construction as other 
 sales, or purchases by agents} 
 
 It may be stated as a settled doctrine of the law of agency, 
 that, unless a person is agent of another by authority or 
 adoption, his acts will not bind that other. 5 
 
 1 Fisher v. Leitzer, 23 Perm. St. agent after the sale was made, and 
 E., 808; Blossom v. The Milwaukee after the defendant had refused to 
 & Chicago Railroad Company, 1 forward the goods ; the court there 
 Wall. (U. S. E.), 655 ; 5 Am. Law held that the defendant was not 
 Eeg. (N. S.), 220; Chirmock v. bound, because the agent had no 
 Sainsbury, 30 L. J. Ch., 409; Crea- authority to sign for the defendant 
 ger v. Link, 7 Md., 259; Simonton when he did sign. 
 
 v. Minneapolis Bk., 24 Minn., 216; * People v. White, 6 Cal., 75; 
 
 Eeed v. Latham, 40 Conn., 452. Bozza v. Eowe, 30 111., 198; Baker 
 
 2 Bateman on Auctions, § 30; 3 v. Jameson, 2 J. J. Marsh. (Ky.), 
 Stark. Ev., ,3d ed., 1196. 547; Brock v. Jones, 8 Tex., 78; 
 
 SHeyman v. Neale, and Farmer Bleeker v. Franklin, 2 E. D. Smith, 
 
 v. Eobinson, 2 Camp., 338, and 93; Eucks v. Barbour, 48 Ind., 274; 
 
 notes; also, Warwick v. Slade, 3 Secret v. Twilty, 1 McMull. (So. 
 
 Camp., 127. In Day v. Wells, 30 Car.), 255. 
 
 Beav., 220 (7 Jur. N. S., 1004), the ^Hankins v. Baker, 46 N. Y., 
 
 memorandum was signed by an 666; Price v. Dunn, 56 Barb., 648. 
 
CHAP. XXVI. J AUCTION SALES RETRACTION OF BID. 469 
 
 § 574. The auctioneer, until after the hammer is knocked 
 down, is in no sense the agent of the bidder. 
 
 As already shown, a bid is a mere proposal. Wow a pror 
 posal may be withdrawn or revoked at any time before there 
 has been such an acceptance as to be enforceable by law ; 
 that is, strictly speaking, in accordance with the require- 
 ments of the statute of frauds. Until the hammer goes 
 down there has been no acceptance of the bidder's proposal. 
 Under the rules of the common law, doubtless, such a pro- 
 posal and acceptance would be binding upon the contracting 
 parties without any writing. 
 
 But under the statute of frauds, and particularly in states 
 where the statute recognizes and prescribes the manner of 
 auction sales, as in New York, Minnesota, Wisconsin and 
 some other states and territories, confirmation or sanction 
 of the acceptance in order to be binding must be shown by 
 some written memorandum subscribed by the buyer, auc- 
 tioneer or authorized agent. 1 
 
 As such an agency is not irrevocable, it seems to follow 
 that the bidder may revoke the implied agency existing in 
 the auctioneer before the auctioneer has actually written 
 his name in the sale"-book. 
 
 If, then, the bidder revoke such agency and forbid the 
 auctioneer to sign, clearly the auctioneer would have no 
 right after that to sign so as to bind him. In order to con- 
 stitute a valid contract, the assent must not only be mutual 
 and be intended to bind both parties, but it must also co- 
 exist at the same moment of time. 
 
 § 575. In Gill v. Bicknell, 2 Shaw, 0. J., in relation to 
 auction sales, says that " where the name of the bidder is 
 entered by the auctioneer, or by his clerk, under his direc- 
 tion, on the spot, and such entry is so connected with the 
 subject and terms of sale as to make a part of the memo- 
 
 1 Story on Agency, 234; Benj. on 653 ; Johnson v. Roberts, SO Eng. L. 
 Sales. 471 ; Head v. Diggon, 3 M. & & E., 234. 
 
 E., 97 ; Eoutledge v. Grant, 4 Bing., 2 56 Mass., 358 ; Cleaves v. Foss, 4 
 
 Greenl., 1. 
 
470 SALES. [CHAP. XXVI. 
 
 ranch m, it is a contract in writing, so as to take the case out 
 of the statute of frauds." 
 
 The technical ground is, that the purchaser, by the very 
 act of bidding, connected with the usage and practice at 
 auction sales, loudly and notoriously calls on the auctioneer 
 or his clerk to put down his name as the bidder, and thus 
 confers an authority on the auctioneer or cleric to sign, his 
 name, and this is the whole extent of the authority. All this 
 presupposes that the name is written on a book or memo- 
 randum prepared, under a caption, stating the subject-matter 
 and terms of sale; or, on the catalogue, advertisement, or 
 written or printed conditions of sale ; or so definitely refer- 
 ring thereto, as to make the paper referred to a part of the 
 memorandum. 
 
 The bid is in the nature of an affirmative answer; and it 
 is necessary to consider the proposal in order to understand 
 the effect of the answer. Both together may constitute a 
 contract, from which its substance and terms may be gath- 
 ered. 
 
 § 576. In Morton v. Dean 1 it was held that the putting 
 down the name of a bidder was not a sufficient memorandum 
 in writing, because it was not under a proper caption, and 
 did not so definitely refer to any catalogue, advertisement, 
 written or printed, or conditions of sale, as to make them 
 part of the memorandum. 
 
 Says Shaw, Ch. J., in that case, "Commonly, the adver- 
 tisement expresses the property to be sold, and if not the 
 names of the owners, the actual owners, represented by the 
 auctioneer, together with the time and the other terms of 
 payment ; so that when the name of the bidder, and the 
 p>nce, are added, the whole constitutes the elements and 
 substance of a complete contract. 
 
 "But, it may be asked, a contract between whom? Ob- 
 viously, the owner or owners on the one side, and the pur- 
 chaser or purchasers on the other. . . . Prima facie, 
 
 1 13 Met., 385. 
 
CHAP. XXVI.] AUCTION SALES EETEACTION OF BID. 471 
 
 therefore, the auctioneer's memorandum, or a memorandum 
 by the bidder, in his own name, constitutes such a contract." 
 
 % 577. The case of Ecroyd v. Davis l is quite in point as 
 to retracting a bid. The action grew out of the sale of cer- 
 tain land by auction. The property was knocked down to 
 the defendant as the highest bidder, and his name was writ- 
 ten down by the auctioneer's clerk. 
 
 Immediately after the sale the defendant denied that he 
 was the purchaser and declined to sign the contract. Ne- 
 gotiations were had to induce the defendant to sign the 
 contract but he refused, and ultimately the auctioneer ex- 
 ecuted the contract on his behalf, and the plaintiff then 
 sued for the difference between the price at which the prop- 
 erty was knocked down, and the price which they after- 
 wards obtained, and a verdict was rendered for the plaintiff. 
 
 On appeal the court held that, until the fall of the ham- 
 mer, the auctioneer was agent only for the vendor to re- 
 ceive the bids ; that he accepts the bid in that capacity ; and 
 that the implied authority of the auctioneer to sign the con- 
 tract on behalf of the purchaser is revocable at any time be- 
 fore actual signature. The cases hold that the same rules 
 apply to auction sales of goods as of lands. So that, ac- 
 cording to this case, it is distinctly stated that it is the act 
 of signing, and not the knocking down of the hammer, 
 which is the true test whether a contract has been completed 
 so as to satisfy the statute of frauds. 
 
 "While the above principle is implied in several well-con- 
 sidered authorities and cases, there does not seem to be an- 
 other case in the books — to ase a phrase in court parlance — 
 " on all-fours " with this. 
 
 The principle of it does not seem to be unreasonable ; on 
 the contrary, it seems to be just and in accordance with the 
 policy, spirit and letter of the statute of frauds in those 
 states where the statute requires the auctioneer to write in 
 his sale-book the particulars of the sale made by him at the 
 time of the transaction. 
 1 3 Australian Jur. E., 114. 
 
4:72 SALES. [chap. XXVI. 
 
 § 578. As an additional authority supporting the doc- 
 trine that it is the writing down the name of the highest 
 bidder by the auctioneer in his sale-book, and not the act of 
 knocking down the hammer, that binds the bidder, take the 
 opinion of the court in the case of Pike v. Balch. 1 
 
 As it appears by the facts in that case, the schooner " Balti- 
 more " went ashore in a fog on an island called the " Old 
 Man," off Little Machias Bay, and Avas greatly damaged 
 and full of water. After being advertised, the vessel and 
 cargo were sold at public auction the day after the acci- 
 dent. 
 
 The questions on appeal in this case were as to certain 
 requests for instructions to the jury. Some of them were 
 as to the duties of auctioneers. It was conceded that auc- 
 tion sales were within the statute of frauds. 
 
 After quoting the section of the statute, Hathaway, J., 
 said: " The auctioneer is the. agent of both parties, and is 
 bound to act for them both with equal fidelity; and his 
 entry of the name of the purchaser on his book or memo- 
 randum containing the particulars of the contract is a suf- 
 ficient signing of it within the statute. 
 
 " Until some one of those things required by the statute as 
 necessary to complete the contract of sale be done, a time for 
 repentance remains, and the sale is not perfected. 
 
 " Neither of these things necessary to complete the con- 
 tract of sale having been done, the business remained unfin- 
 ished and open for further proceedings." 
 
 But for the statute of frauds, no doubt, the highest bid- 
 der at an auction would be liable in damages for a refusal 
 to take the goods bidden off by him? 
 
 § 579. Also take the case of Phillips v. Bistolli. 3 There 
 certain ear-rings were sold at auction and delivered to the 
 purchaser, who, after detaining them three or four minutes, 
 
 138 Me., 310; Martin v. Dana, 13 219; Bowser v. Cessna, 62 Penn. 
 Met. , 385. St. , 150, and cases cited. 
 
 ZAshcom v. Smith, 2 P. & W„ a 2 B. & C, 511; Greene v. Bate- 
 
 _ man, 2 Wood. & M„ 359. 
 
CHAP. XXVI.] AUCTION SALES RETRACTION OF BID. 473 
 
 handed them back, saying that he was mistaken in regard 
 to the price. The vendor refused to receive the property, 
 and brought his action and recovered a verdict. On appeal 
 the verdict was set aside. The court, Abbott, 0. J., says : 
 "To satisfy the statute there must be a delivery of the 
 goods by the vendor, with an intention of vesting the right 
 of possession in the vendee, and there must be an actual 
 acceptance by the latter, with an intention of taking to 
 the possession as owner." 
 
 Thus, in this somewhat extreme case, it is obvious that 
 the court assumed that the statute can only be satisfied by 
 something done subsequently to the sale, and unequivocally 
 indicating the necessity of the mutual intentions of the 
 parties, and that mere words are insufficient. 
 
 § 580. Again, suppose the bidder's name be taken down 
 by the auctioneer in his book before the hammer falls, which 
 the auctioneer is not authorized to do except as a minute, 
 yet, if the act is adopted by the bidder after the hammer is 
 knocked down, it will be a ratification and be binding- 
 Therefore, it follows that, without ratification, the act of the 
 auctioneer in thus writing down the bidder's name while 
 solely acting as agent of the seller would not bind the bid- 
 der. Accordingly, in order to bind the bidder or buyer, it 
 would have to be shown at the trial that he adopted the 
 memorandum as his own, otherwise a recovery could not be 
 had. 
 
 § 581. The following deductions may be reasonably 
 drawn from the cases : 
 
 As by the trend of many decisions, the highest bidder at 
 an auction sale is not bound until the auctioneer has made 
 a memorandum of the contract in accordance with the stat- 
 ute of frauds. 
 
 That there is nothing inconsistent in the auctioneer tak- 
 ing a higher bid, even after the hammer has been knocked 
 down. 1 
 
 1 Harvey v. Harris, 112 Mass., 32. 
 
474 
 
 SALES. 
 
 [OHAP. XXVI. 
 
 That the bidder may revoke the auctioneer's authority to 
 sign for him after the hammer is knocked down, if the revo- 
 cation takes place before the proper memorandum has been 
 made by the auctioneer. 1 
 
 That the memorandum must be made at the time, eo in- 
 stanti; of, at least, before any other business is entered 
 
 upon/ 
 
 iEcroyd v. Davis, 3 Australian 
 Ju3\ R., 114; 3 Vict. Law R., 228; 
 30 Moak, 670 ; Emrnevson v. Heelis, 
 2 Taunt. R., 38; Walker v. Hening, 
 21 Gratt., 683. 
 
 2 Gwathney v. Cason, 74 N. Car., 
 7; Horton v. McCarty, 53 Me., 396; 
 Fessenden v. Mussey, 11 Cush., 127 ; 
 
 Howe v. Dewing, 2 Gray, 477 
 (dictum); McComb v. Wright, 4 
 John. Ch., 659; Goelet v. Cowdrey, 
 
 1 Duer, 132 ; Bamber v. Savage, 52 
 Wis., 113; Hunt«. Gregg, 8Blackf., 
 109. See contra, Barclay v. Bates, 
 
 2 Mo. App. , 145 ; but see Daniel v. 
 Harley, 3 Strobh. (So. Car.), 233. 
 
CHAPTEE XXYII. 
 
 OF PLEADING THE STATUTE OF FRAUDS. 
 
 582. The statute of frauds did not alter the rules of pleading. 
 
 583. The defense under the statute is a personal one. 
 
 584. Not necessary to plead the statute of fratlds where it does not 
 
 appear that the contract was in writing. 
 
 585. Nonsuit will be reversed where part of goods have been deliv- 
 
 ered; Austin v. Boyd. 
 
 586. "When is it unnecessary to plead the statute of frauds ; Porter v. 
 
 Wormser. 
 
 587. Appellate court will not consider the statute as a defense unless 
 
 pleaded, or exceptions taken in the case. 
 
 588. "Where the statute of frauds is pleaded in defense it is necessary 
 
 to show that the contract was in writing, if it was required to 
 be in writing. 
 
 589. When the declaration is not demurrable. 
 
 590. Unless pleaded the statute is waived. 
 
 591. "When must the plaintiff declare on the special promise. 
 
 592. "What is meant by the saying, "the statute has not changed the 
 
 rule of pleading." 
 
 593. "When will it be presumed that there was a memorandum in 
 
 writing ; Hudnut v. "Wier. 
 
 594. "When does the presumption arise that the contract was not in 
 
 writing. 
 
 595. Unless the defendant denies the contract was in writing, he ad- 
 
 mits it ; Eobbins v. Deverell. 
 
 596. Defense of statute of frauds not available on appeal unless 
 
 pleaded on a demurrer to the declaration ; Johnson v. Latimer. 
 
 597. New matter not admissible unless pleaded. 
 
 598. Defense of statute to be pleaded, or declaration to be demurred 
 
 to ; "Wentworth v. Wentworth. 
 
 599. Jurisdictional facts to be pleaded, when ; if a contract trust have 
 
 been in writing, not necessary to plead the fact. 
 
 600. If striking out part of a plea erroneously did not result in pre- 
 
 venting a party from proving his plea, judgment will not be 
 reversed. 
 
 601. Plaintiff may submit to a nonsuit before verdict or decision. 
 
 602. Plea of readiness to pay necessary, when. 
 
476 SALES. [chap. XXVII. 
 
 § 582. It should be steadily borne in mind that the rules 
 of pleading were not altered, nor in any wise affected, by 
 the enactment of the statute of frauds. 
 
 It changed the rules of evidence. It was new only in the 
 mode of proof which it established. 
 
 Mr. Justice Metcalf states the true rule of pleading under 
 the statute of frauds in Price v. Weaver. 1 
 
 In that case he said, in substance, that a declaration on a 
 promise which, though oral only, was valid by the common 
 law, may be declared on in the same manner, since the stat- 
 ute of frauds, as it might have been before the statute. 
 
 " The writing," he says, " is matter of proof, and not of 
 allegation." 
 
 Chief Justice Wade, in Sweetland v. Barrett, 2 asserts the 
 same doctrine and quotes with approval the language of 
 Mr. Justice Metcalf. 
 
 § 583. It was said in an early Massachusetts case 3 that 
 the effect of the statute of frauds is that the promiser, who 
 would otherwise be liable to such an action, may avoid it. 
 A stranger to the sale cannot plead it. The statute as a 
 defense is, personal and cannot be interposed by strangers to 
 the agreement. 4 
 
 All this seems to be clearly set forth in Richards v. Cun- 
 ningham. 5 Like usury, infancy, and a variety of other de- 
 fenses, it can only be relied on by the parties to the contract 
 or their privies. 6 
 
 179 Mass. (13 Gray), 272; Elliott Glenn v. Rogers, 3 Md., 312; 
 
 v. Jenness, 111 Mass., 29; Browne Browne on Stat, of Fr., 503-506; 
 
 on Stat, of Fr., 505; Hunters. Wright v. Jones, 105 Ind., 17. 
 
 Randall, 62 Me., 423; Farwell v. 5 10Neb.,417. 
 
 Tillson, 76 Me., 227. 6Eiseleyu. Malohow, 9 Neb., 174; 
 
 2 4 Montana, 217; Dabovicb. v. McCormick v. Drummett, id., 384; 
 
 Errneric, 7 Cal., 211; Mullaly v. Uhlu Robinson, 8 id., 272; Robin- 
 
 Holden, 123 Mass., 583; Reed on son v. Uhl, 6 id., 328. See, also, 
 
 Stat, of Fr. , 501 ; Winn v. Albert, Chicago Dock Company v. Kinzie, 
 
 2 Md. Ch. Dec, 169; Green u. Rich- 49 III, 289; Simpson v. Pettus, 7 
 
 ards, 8 C. E. Gr., 33. Ala., 455; Code of Ala., § 2121; 
 
 3 Cabill v. Bigelow, 18 Pick., 369. Phillips v. Adams, 70 Ala., 373. 
 
 * Bodkin v. Merit, 102 Ind., 293; 
 
CHAP. XXVII.] PLEADING THE STATUTE OP FRAUDS. 477 
 
 In Eiseley v. Malchow, supra, Lake, J., says: " The ob- 
 ject of this statute is not to avoid sales of property satisfac- 
 tory to the parties making them, although made without 
 complying with its formalities, but it is merely to enable 
 parties to such contracts, in case of dispute and litigation, 
 to insist upon certain specified modes of proof in order to 
 enforce them." 
 
 § 584. As to pleading the statute of frauds, Philips, C, 
 in Springer v. Kleinsorge, 1 in effect said : The fact not ap- 
 pearing whether the contract was in writing, it is not neces- 
 sary in so many words to plead the statute eo nomine. 
 "Where the defendant in his answer denies the contract, it 
 is not necessary for him to insist upon the statute as a bar." 2 
 
 It has been held sufficient if raised by a general denial. 3 
 
 The most recent and reliable decisions hold that to be 
 available on the trial the statute of frauds must be pleaded. 4 
 Such is clearly the law in Missouri. Such was also the com- 
 mon law rule. It does not seem to be available by de- 
 murrer. 5 
 
 § 585. In Austin v. Boyd 6 it appeared that the defend- 
 ant bought of the plaintiff thirteen hogsheads of tobacco, 
 at $8 per hundred ; that he received and paid for six of 
 them in pursuance of the contract of sale, but refused to re- 
 ceive and pay for the remainder; that the plaintiff, after 
 keeping the remaining hogsheads for a time stated, after 
 having given the defendant ample notice, advertised and 
 exposed the same for sale to the highest bidder. 
 
 The action was for the difference between the price which 
 
 1 83 Mo. , 155. a defense to an action for goods 
 
 ■ 2 Hook v. Turner, 22 Mo., 333; sold and delivered, either where 
 
 Wildbahn v. Robidoux, 11 Mo., 600. the answer admits the delivery, or 
 
 3 Bliss on PL, 353; Wiswell V: where it fails to plead the statute 
 
 Tefft, 5 Kan., 263. as a defense. So held in Graff v. 
 
 * Donaldson v. Newman, 9 Mo. Foster, 67 Mo. E., 513; Sherwood 
 
 App., 235. v. Saxton, 63 Mo. R., 78; Mullaly 
 
 6Futches v. Futches, 24 Alb. v. Holden, 123 Mass., 583. 
 
 Law J., 498. It seems to be held « 23 Mo. App., 317. 
 that the statute is not available as 
 
478 SALES. [chap. XXVII. 
 
 the remaining hogsheads brought and the price which the 
 defendant had agreed to pay for them. 
 
 The answer traversed all the allegations of the petition. 
 The defense was the statute of frauds. 
 
 Thompson, J., said: " It is plain that the court erred in 
 the instruction for a nonsuit, since the delivery of a part 
 of the tobacco under a contract for the sale of the whole 
 would take the case out of the statute." 
 
 Other errors declared by the court were : The refusal to 
 allow a witness, who had kept the books of the firm through 
 whom the contract was made, to refer to the books to re- 
 fresh his memory upon a material point ; and the refusal to 
 allow the witness to testify as to the prices for which the 
 remaining hogsheads of tobacco were sold, after using the 
 books to refresh his memor3 r , on the ground " that the auc- 
 tioneer was the best evidence." 
 
 The judgment of nonsuit was reversed and the cause re- 
 manded. 
 
 § 586. It is well settled that to be available the defense 
 of the statute of frauds must be pleaded. In general, the 
 grounds of objection should be taken in the complaint. But 
 where a case is shown on the face of the complaint to oe 
 within the statute, it would seem to be unnecessary to 
 plead it. 
 
 In the case of Porter v. "Wormser, 1 where the complaint 
 in effect alleged the existence of a contract for the pur- 
 chase of certain bonds, and sought to avoid the loss charged 
 thereon on the ground of fraud in the inception of the con- 
 tract, and because the sale under the " stop-order " 2 was 
 made in disregard of the price limited therein ; such ground 
 of objection having been taken for the first time in the " re- ' 
 quests for findings," and that the original contract of pur- 
 
 !94N. Y., 431 (1884). See, also, a certain figure, and whenever this 
 
 Hedges v. Strong, 3 Oregon, 19 ; figure is reached, to stop the trans- 
 
 Hayden v. Steadman, 3 id., 550. action by then selling or buying, as 
 
 2 The meaning of "stop-order," the case maybe, as well as possi- 
 
 as given by a witness, " is to await ble." Page 443. 
 
CHAP. XXVII.] PLEADING THE STATUTE OF FRAUDS. 479 
 
 chase was void by the statute of frauds, there being no note 
 or memorandum of the contract signed by him, the court, 
 Andrews, J., said : " It cannot be doubted that if the de- 
 fendants had brought an action to recover a balance claimed 
 to be due on the contract for the purchase of the bonds, 
 without disclosing whether the contract was oral or written, 
 the plaintiff would have been bound to plead the statute to 
 avail himself of its protection. 
 
 " The plaintiff, having become an actor, and brought an 
 action to impeach the account on grounds which implied 
 the existence of a formal contract, is not in a position to 
 question the validity of the contract under the statute." 1 
 
 So, also, if the defendant does not insist upon the defense 
 of the statute, he is fairly presumed to have waived it ; and 
 the rule is, Quisque, renuntiare potest juri pro se introducto? 
 § 587. In Bommer v. American Spiral Spring Butt 
 Hinge Manufacturing Company, 3 the complaint in sub- 
 stance set forth that the plaintiff assigned to the defendant 
 his interest in an invention, consisting of an improvement 
 in spiral spring butt hinges, together with the patent 
 therefor, which had been applied for. Though the nomi- 
 nal consideration therefor was $1, the actual consideration 
 was one cent for each hinge which should he manufactured 
 by the defendant. That the patent was issued, and the de- 
 fendant manufactured the same, but had never accounted 
 for or paid over the money accruing,under said agreement, 
 except the sum of $10.31, and that there was a large sum 
 owing the plaintiff, and an accounting was prayed for. 
 Eapallo, J., said : " There is no exception in the case raising 
 
 1 See, also, Cozine v. Graham, 2 Babcock v. Meek, 45 Iowa, 137, and 
 Paige's Ch. E., 177; VaupeU v. sections 3663, 3666, 3667, of the 
 "Woodward, 2 Sandf . Ch., 143 ; 2 code of that state. 
 
 Story's Eq., § 755. 3 81 N. Y., 468. In Kraft v. 
 
 2 Newland on Contracts, ch. 10, Greathouse, 1 Idaho E., 254, it was 
 p. 201; Eondeau v. Wyatt, 2 H. held that the statute of frauds must 
 BL, 68; Spurrier v. Fitzgerald, 6 be pleaded in the court below, or it 
 Ves., 548 ; Flagg v. Mann, 2 Sum- cannot be considered upon the 
 ner's E., 489, 528, 529. See, also, appeal. 
 
480 SALES. [OHAP. XXVII. 
 
 any question under the statute of frauds. The statute is 
 not pleaded, nor was there any objection to the proof of 
 the agreement sued upon, by oral testimony, nor is there 
 any exception to any finding or conclusion which presents 
 any question under the statute. JSo such question can, 
 therefore, be considered on this appeal." 
 
 § 588. The complaint, in Marston v. Sweet, 1 alleged that 
 prior to a stated date the plaintiff and defendants were 
 joint owners of a patented invention, known as "Hawk's 
 Auxiliary Air Chamber for stoves, heaters and furnaces," 
 and it was agreed between them that in consideration that 
 the plaintiff would not license others to use the invention, 
 but give the defendants the exclusive right, they would 
 manufacture the stoves with the invention attached and 
 pay the plaintiff fifty cents for each stove, heater or furnace 
 so manufactured and sold by them ; and the plaintiff claimed 
 to recover the license fees due up to a certain date. Earl, 
 J., said: " It is claimed by the defendants that the contract 
 sued on is void under the statute of frauds, as it was not to 
 be performed within a year and was not in writing. A 
 contract, valid in form, is set out in the complaint, and it 
 does not there appear that it was in writing. It was not 
 necessary to allege that it was in writing. For the pur- 
 poses of the complaint that will be presumed. If the 
 contract alleged in the complaint had been denied, or the 
 statute of frauds had been set up as a defense, then it would 
 have been necessary upon the trial to prove that the con- 
 tract was in writing, if it was one which the statute required 
 to be in writing." There was no averment that it was void 
 on that account. ..." Hence, it may be assumed that 
 the statute of frauds furnishes no defense to the action in its 
 present condition." 
 
 § 589. An important case in Yermont upon the subject 
 of pleading the statute of frauds is Hotchkiss v. Ladd. 2 
 
 1 66 N. Y., 206. See Moak's Van Y. 226; Quinlan v. Raymond, 3 N. 
 Santvoord's PI., 203, and cases Y. Stat. R., 573. 
 cited; Duffy v. O'Donovan, 46 N. 2 36 Vt., 593; 86 Am. Dec, 679. 
 
CHAP. XXVII.] PLEADING THE- STATUTE OF FRAUDS. 481 
 
 The position taken by the court, Poland, 0. J., is the same 
 as is laid down in Browne on the Statute of Frauds, that the 
 declaration need not allege the promise to be in writing, and 
 if the facts alleged show a contract that would be binding 
 if evidenced by a writing, the declaration is not demurrable 
 because it is not stated to be in writing. 
 
 At the end of this case, as given in volume 86 of the 
 American Decisions, the able editor, Mr. A. C. Freeman, has 
 presented a valuable brief of many leading cases of the 
 .several states on the subject of pleading the statute of 
 frauds, which will well repay a careful perusal. 
 
 § .590. In Howe v. Ohesley, 1 the court, Redfield, J., says, 
 touching the facts in that case, it is true that the promise is 
 not binding, as within the statute of frauds. By several 
 Vermont cases he shows that, unless pleaded, the statute is 
 waived, and that when a contract is once proved, without ob- 
 jection to the manner of proof, it becomes a valid contract. 2 
 
 § 591. In Louisville Prize Mining Company v. Scudder, 8 
 the court, A. W. Stone. J., laid down the following sound 
 principle of pleading: "If the agreement is one embraced 
 within the terms of the statute of frauds, then the plaintiff 
 must declare on the special promise." 
 
 § 592. It is settled that the statute of frauds did not 
 alter the form or rule of pleading. 
 
 In Krohn v. Bantz, 4 Worden, J., apprehends the true prin- 
 ciple to have been that, where the declaration counted upon 
 a contract within the statute of frauds, not alleging it to 
 
 i 56 Vt. 731 ; Montgomery v. Ed- 435. In Hayden v. Steadman, 3 
 
 wards, 46 Vt., 151; Hotchkiss v. Oregon, 552, Boise, J. , says that, in 
 
 Xiadd, 36 Vt., 593. cases of collateral undertaking un- 
 
 2 Adams v. Patrick, 30 Vt., 519. der the statute of frauds, the plaint- 
 In Strong v. Dodds, 47 Vt., 348, it iff should declare specially. Where 
 was held that, if a defendant allows the plea was the general issue, the 
 a contract to be proved by parol benefit of the statute was held to 
 evidence, he waives the statutory be waived. Martin v. Blanchett,, 
 objection. 77 Ala., 288. 
 
 3 3 Col., 154; Cummings v. Stone, * 68 Ind.. 281. See, also, Harper 
 13 Mich., 70; Fuller u Rice, 52 id., v. Miller, 27 id., 277. 
 
 31 
 
482 SALES. [chap. XXVII. 
 
 have been by parol, and not alleging any matter that would 
 take it out of the statute, the declaration is good because 
 the contract alleged may have been in writing, and not oe- 
 cause there may have been other matters not alleged that 
 would take the contract out of the statute; and this, he 
 says, is all that is meant when it is said that the statute has 
 not changed the rule of pleading, and furnishes only a rule 
 of evidence. 
 
 In this case, the court, after reviewing the pleading and 
 the facts, comes to the conclusion that a complaint on a 
 parol contract within the statute, which does not show that 
 the purchaser has received part of the property or given 
 something in earnest to bind the bargain, or in part pay- 
 ment, does not state facts sufficient to constitute a cause of 
 action. 1 
 
 § 593. In Hudnut v. Wier 2 it appeared that "Wier sold to 
 Hudnut five thousand bushels of corn, then owned by him, 
 at fifty cents per bushel, the same to be delivered on the 
 bank of the Wabash river, the purchaser agreeing to furnish 
 the sacks in which to put the corn after it was shelled. The 
 defendant furnished and delivered to the plaintiff fifteen 
 hundred sacks of the value of $100 ; after the plaintiff had 
 shelled the corn and put it in the sacks, the defendant re- 
 fused to receive and accept the same. The plaintiff sold 
 the corn at a sacrifice, and sustained damages. 
 
 "A demurrer was overruled to the complaint, and this 
 ruling is assigned for error." The court, Mitchell, J., said: 
 " There being no averment in the complaint that there was 
 a ' note or memorandum in writing of the bargain,' it will 
 be presumed, following the rule in Krohn v. Bantz, 3 that no 
 writing was signed." 
 
 As there was no memorandum in writing, and as the de- 
 livery of the sacks to the seller did- not take the case out of 
 the statute of frauds, the contract was void. 
 
 So, in Dickson v. Lambert, 4 Bicknell, 0. C, said that, 
 
 1 Cozine v. Graham, 2 Paige, 177. 3 68 Ind., 277. 
 « 100 Ind., 501. 4 98 Ind., 491. 
 
CHAP. XXVII.] PLEADING THE STATUTE OF FBATJDS. 483 
 
 where a contract is not averred to be in writing, it is taken 
 to be verbal, and a memorandum of such a contract, al- 
 though sufficient to take it out of the statute, is not the 
 contract itself. 
 
 • § 591. So, in the important case of King v. Enterprise 
 Insurance Company, 1 the court, Buskirk, J., said: "If a 
 pleading is based upon an instrument which is required to be 
 in writing (here the action was upon an insurance policy 
 insuring a certain interest in the steamboat Empire), it will 
 be subject to demurrer, unless the original or a copy is filed, 
 with such pleading. If a pleading alleges a contract to be 
 in writing, it will be bad on demurrer, unless the original 
 or a copy is filed and made a part of such pleading." 
 
 Thus, also, in Harper v. Miller, 2 the court held that under 
 the code of Indiana, if a contract is not alleged to be in 
 writing, and no copy is filed with the complaint or answer, 
 the presumption arises that the contract declared on is not 
 a written one, and if the contract is such as is required by 
 the statute of frauds to be in writing, the objection may be 
 taken by demurrer. 
 
 § 595. In Bobbins v. Deverill 3 the complaint averred 
 that the defendant bought of P. & W., at Menasha, one 
 hundred barrels of flour, at $480 per barrel, payable on de- 
 livery. The flour was shipped by water from Menasha to 
 Green Bay for defendant, and was delivered, but the defend- 
 ant Refused to pay for the same. 
 
 The claim was assigned to the plaintiff, who brought this 
 action. 
 
 To the usual complaint, the defendant set up a denial of 
 the assignment ; that the plaintiff was not the real party in 
 interest, and a counter-claim. A reply denied the counter- 
 claim. 
 
 Dixon, C. J., declared at the outset that it was a settled 
 
 145 Ind., 43, 54; Tinkler v. 2 27 Ind., 277: but see Bunting v. 
 Swaynie, 71 id., 562; Suman v. Beideman, 1 Cal., 182. 
 Springate, 67 id., 115. 3 20 Wis., 142. See, also, Winslow 
 
 v. Bradley, 15 Wis., 394. 
 
484 SALES. [CHAP. XXVII. 
 
 rule before the enactment of the code, that, in pleading a 
 contract which the statute of frauds requires to he in writ- 
 ing, it was not necessary to allege the facts relied on to take 
 the case out of the statute. 
 
 " It is sufficient, on demurrer, to allege that a contract 
 was made. Such an allegation implies that the contract is 
 in writing, and valid under the statute." 
 
 As the complaint averred that the flour was delivered ac- 
 cording to the terms of the sale, the court says, "the pre- 
 sumption being that the contract of sale was in writing, and 
 subscribed by the defendant as required by the statute (sec. 
 3,ch. 107, E. S.), . . . and no question of the receipt or 
 acceptance of the flour by the defendant, so as to take the 
 ■case out of the statute, in case there had been no contract 
 in writing, is presented. . . . By not denying the sale 
 •as alleged in the complaint, the defendant admits it to have 
 been in writing; and this, with admission of the delivery 
 at Menasha in pursuance of it, is, under the statute, in all 
 respects equivalent to an acceptance in fact of the flour by 
 the defendant at Green Bay, in case there had been no 
 writing. For this reason the court was right in overruling 
 the defendant's objection to the admission of any evidence 
 under the complaint, and in refusing to give the instruction 
 asked upon this point. The instruction was wholly imma- 
 terial under the pleading." 
 
 The court took the further ground that the indebtedness 
 was explicitly admitted by the answer. 
 
 Downer, J., in the case, expressed the opinion that the 
 only way the defect of parties plaintiff could have been 
 taken advantage of was by demurrer or answer, and if not 
 so taken it was waived. 
 
 § 596. Johnson v. Latimer 1 was an action brought to re- 
 cover on an open account. The evidence showed that the 
 plaintiffs sold Johnson a " separator," one-half the price of 
 which being payable on delivery, and the other half amount- 
 
 * 71 Ga., 470; Printupu Barrett, 46 Ga., 411. 
 
OHAP. XXVII.] PLEADING THE STATUTE OF FRAUDS. 485 
 
 ing to $212.50, was the subject of this action. The general 
 defense was that a "portable separator" was desired, for the 
 purpose of hauling it about the country with his team, and 
 that Latimer guarantied that the machine should be what 
 he desired in this regard. 
 
 It was contended that, as this was a verbal contract for 
 the sale of goods to the amount of $50 or more, it was 
 obnoxious to section 1950, par. 7 of the code, and was, 
 therefore, invalid. But the court, Hall, J\, said: "This de- 
 fense was not specially pleaded. No motion was made to 
 nonsuit the case at the close of the plaintiff's evidence, nor 
 was any demurrer taken and urged on this distinct ground." 
 And thus not available on appeal. In McDougald v. Banks, 1 
 Nisbet, J., said : "It is a safe rule always to plead the statute.'''' 
 
 § 597. In the recent case of Landis v. Morrissey, 2 the 
 complaint alleged that the plaintiffs sold and delivered cer- 
 tain goods to Boch & Morrissey ; that Boch died leaving 
 the defendant the sole surviving partner. The answer de- 
 nied the allegations of sale as stated in the complaint. 
 
 The court held that evidence that the goods were sold 
 on a credit of " sixty days " was not new matter, and was 
 admissible without being specially pleaded. 
 
 § 598. In Wentworth v. "Wentworth, 3 the court, Fland- 
 rau, J., says that the defendant did not waive the effect of 
 the statute of frauds by not pleading it. That he is only 
 hound to plead it in defense when it does not appear in the 
 complaint that the contract was by parol. Where it does so 
 appear, and no part performance is alleged to take it out of 
 
 1 13 Ga., 451; Clark v. Terry, So to avail himself of the benefit of 
 Conn., 399. Defendant need not the statute of frauds, must spe- 
 plead the statute. See Givins v. oially insist on it.'' If the answer 
 Calder, 2 DeS., 171. substantially admits the contract 
 
 2 69 California, 83 ; Osborne v. sued on, and sets up a breach, but 
 Endicott, 6 Gal., 149. fails to plead the statute of frauds 
 
 3 2 Minn., 277; Tarletonu. Vietes, in bar, the defendant is presumed 
 1 Gil., 470; 41 Am. Dec, 195. This to have waived it. Connor v. 
 case .holds that "it is a settled Hingtgen, 19 Neb., 472. 
 principle of equity, that a party, 
 
486 SA'LES. [chap. XXVII. 
 
 the statute, the defendant is not hound to plead the statute, 
 the complaint is demurrable, and materially defective. 
 
 The appeal here arose out of a suit for the specific per- 
 formance of a parol agreement to convey certain lands; 
 but it will serve to show the trend of the decisions gener- 
 ally on this subject. 
 
 § 599. In Smith v. Auerbach 1 the complaint set forth 
 that the chattel mortgage, therein involved, was in viola- 
 tion of the bankrupt act, but failed to show wherein it vio- 
 lated that act. The jurisdictional facts were not pleaded. 
 The court, Knowles, J., said: "These facts ought to be 
 specifically pleaded to allow a party to introduce proof 
 thereof." An allegation that the mortgage is void is not 
 specific enough. 
 
 It seems to be a well settled rule of pleading at common 
 law, that where the contract must have been in writing 
 under the statute of frauds, it was not necessary to show 
 that fact in the declaration. 2 For, as already observed, the 
 statute of frauds applies to the evidence, and not to the 
 pleadings. 3 
 
 § 600. If certain parts of a plea be stricken out, and even 
 if improperly stricken out, yet if, upon the inspection of the 
 whole record, it be found that no harm resulted to the de- 
 fendant therefrom by reason of his being permitted to prove 
 all that he alleged in his special plea which was stricken 
 out, it is no cause for reversing the judgment. 4 
 
 § 601. Under the decision in Partridge v. "Wilsey, 5 it is 
 held that, where no set-off is pleaded, it is always allowed 
 to the plaintiff to submit to a nonsuit at any time before 
 the jury return with their verdict; and where the trial is by 
 the court, at any time before the court makes its decision. 
 
 l 2 Montana, 348; Sweetland v. Clews, 21 id., 317; Sloan Saw Mill 
 
 Barrett, 4 id., 217. & Lumber Co. v. Guttshall, 3 Col- 
 
 2 1 Chitty's PL, 222. orado, 11. 
 
 8 Mills v. Kuykendall, 2 Blackf., 5 8 Iowa, 461; also, as to pleading 
 
 47; Miller v. Upton, 6 Ind., 53. the statute, see Babcock v. Meek, 
 
 4 Grand Chute v. Winegar, 15 45 Iowa, 137. 
 Wall., 355; Chambers County v. 
 
CHAP. XXVII.] PLEADING THE STATUTE OF FRAUDS. 487 
 
 § 602. Porter v. Eose * was an action on a contract for 
 six thousand gallons of whisky at seventy cents, to be de- 
 livered at Buffalo, and to be paid for on delivery. On the 
 trial the defendant's counsel moved for a nonsuit, because 
 the plaintiff had not shown a readiness to pay. The ob- 
 jection was overruled on the ground that this was not neces- 
 sary. Spencer, J., said : " It is fully settled in a variety of 
 modern cases which have disregarded the artificial and 
 subtle distinctions of former times, and looked to the real 
 intention and meaning of the parties, that when two acts 
 are to be done at the same time ; as where the one agrees to 
 sell and deliver, and the other agrees to receive and pay, an 
 averment by the purchaser, in case he sues for the non- 
 delivery, of a readiness and willingness to pay, is indispensably 
 necessary ; and that, consequently, the readiness and willing- 
 ness to pay is matter to be proved on his part, whether the 
 other party was at the place ready to receive the thing con- 
 tracted for or not." The following cases hold that a readi- 
 ness must be averred ; but none go so far as to say that 
 actual proof of readiness must be given at the trial. 
 
 It is a general rule, however, that all material averments 
 must be proved. 
 
 112 Johns., 209. See Chaplin v. Rogers, 1 East, 195, 203; Topping v. 
 Boot, 5 Cowen, 404. 
 
CHAPTER XXVIII. 
 
 OF LAW OF PLACE OF THE CONTRACT AS AFFECTED BY THE 
 STATUTE OF FRAUDS. 
 
 § 003. Of the lex loci as to validity of contracts under the statute of 
 frauds. 
 
 604. How the question resolved ; Marie v. Garrison. 
 
 605. Must the contract satisfy the law of the place where made and 
 
 where enforced ; different views expressed. 
 
 606. Law of place of contract governs ; Dacosta v. Davis. 
 
 607. Same subject ; Judge Story's opinion ; as to limitation of action 
 
 governed by the lex fori. 
 
 608. Another example ; Elmendorf v. Taylor. 
 
 609. "When does the law of place of delivery govern. 
 
 § 603. The statute of frauds of several of the states sim- 
 ply lays down a rule of evidence? while the statute of some 
 •other states declares the contract itself void unless it com- 
 plies with the statute. 2 
 
 It is a question of growing importance as to which stat- 
 ute is to apply as affecting sales of goods, etc. — the statute 
 of frauds of the state where the bargain is made, or of the 
 state where the action is commenced. 
 
 The rule seems to be of almost universal application, that, 
 if a contract is valid where it is made, it is to be deemed 
 valid everywhere ; and also that the law of the place of the 
 contract is to govern as to the remedies under it. 
 
 This general subject has been quite frequently passed 
 upon by the courts. 
 
 1 Arkansas, California, Connecti- 2 Arizona, Minnesota, Montana, 
 
 cut, Dakota, Florida, Georgia, In- New Jersey, New York, Nevada, 
 
 diana, Maine, Maryland, Massachu- Oregon, Wisconsin and Wyoming 
 
 setts, Michigan, Missouri, New Territory. 
 Hampshire, South Carolina and 
 Vermont. 
 
OHAP. XXVIII.] LAW OE PLACE OF THE CONTRACT. 489 
 
 § 604. Perhaps the most recent case where this question 
 has been discussed is that of Marie v. Garrison. 1 There. 
 Professor Dwight declares the rule to be readily resolved. 
 by inquiring whether the statute of frauds in the particular 
 state where the contract is made is in words which mani- 
 fest only a rule of evidence, or in that which declares the 
 contract itself void if it does not comply with the statute of 
 frauds. 
 
 § 605. In Mr. Keed's elaborate treatise on the statute of 
 frauds, the position seems to be taken, that, in order to be 
 enforceable by law, the contract ought to satisfy the stat- 
 ute of the place where it is made, as well as that of the 
 place where suit is brought. 2 
 
 In discussing these contrary views an able law journal 
 remarks : 
 
 " Professor D wight's analysis of the language of the stat- 
 ute, however, compels more attention than Mr. Eeed seems 
 inclined to give it, and it is difficult to see on what ground 
 Mr. Reed can sustain his rule that the law of the forum 
 must also be satisfied in those cases where the law of the 
 forum does not prohibit an action nor relate to the question 
 of evidence, but simply declares that the contract shall be 
 void if not in such a form. 
 
 " This distinction seems to be indirectly supported by the 
 doctrine of the Massachusetts cases, which we understand 
 are strongly insisted on at Harvard, distinguishing between 
 the memorandum and the contract and holding the contract 
 valid, but not enforceable unless a memorandum has been 
 made, and going so far as to hold that although the con- 
 tract, as distinguished from a memorandum, cannot be 
 proved for the purpose of sustaining an action, it may be 
 proved by oral evidence for the purpose of showing that 
 the memorandum offered as embodying it did not truly state 
 the contract it pretends to, and thus defeating the action." 3 
 
 § 606. A well considered New Jersey case seems to sus- 
 
 1 13 Abb. N. C, 210. 3 N. Y. Daily Register, Sept. 14, 
 
 2 Eeed on Stat, of Frauds, 16, 18. 1885. 
 
490 SALES. [chap. XXVIII. 
 
 tain the doctrine laid down in Marie v. Garrison. 1 In that 
 state the statute of frauds provides that every contract for 
 the sale of goods, etc., for the price of $30 or upwards 
 " shall be void, unless," etc. The decision in Dacosta v. 
 Davis 2 goes to the point that a contract made in New 
 Jersey for the sale of goods of the value of $30 or more, 
 situate .and to be delivered in Philadelphia, must comply 
 with the requisites of the statute of frauds of New Jersey,, 
 or the contract will be void. 
 
 Thus, also, in Houghtaling v. Ball, 3 it was directly held 
 that an oral contract for the sale of goods, made in a state 
 where the" statute of frauds does not prevail, can be en- 
 forced in Missouri, where the statute of frauds does exist 
 substantially in the language of the seventeenth section of 
 the English statute ; the words being, " No contract," etc., 
 " shall be allowed to be good, unless," etc. 
 
 § 607. In general the authorities and cases under the 
 civil, as well as common law, seem to concur in fixing the 
 rule that the nature, validity and construction of the con- 
 tract is to be determined by the law of the place where 
 the contract is made, and, if valid and enforceable there, 
 the contract is valid and enforceable everywhere. 
 
 And thus, in substance, Mr. Justice Story says, that 
 where a contract for the sale of goods is made by parol in 
 a country by whose laws it is required to be in writing, is 
 sought to be enforced in any other country, it will be held 
 void in the state or place where it is made. And the like 
 rule applies, vice versa, where parol contracts are good by 
 the law of the place where they are made. 4 
 
 But it seems that whatever relates to questions of limita- 
 tion of the action is to be determined by the lex fori? 
 
 1 13 Abb. N. C, 210. effect is the same. Westheimer v. 
 
 ^ 4 Zabriskie (N. J.), 319. Peacock, 2 Iowa, 528. 
 
 3 20 Mo. E., 563. The statute of i Story's Conflict of Laws, § 262; 
 
 frauds of Iowa provides that "no Alves v. Hodgson, 7 T. E., 241; 
 
 evidence, etc., is competent," while Clegg v. Levy, 3 Camp., 166. 
 
 the English statute reads " no ac- 5 Bulger v. Eoche, 11 Pick., 36. 
 tion shall be brought,'' etc. The 
 
■CHAP. XXVIII.] LAW OF PLACE OF THE CONTKACT. 491 
 
 These principles seem to be generally received, except in 
 cases where, from the tenor of the contract, it is perceived 
 that it was .entered into with a view to the laws of some 
 other state or country. 
 
 § 608. Thus, in Elmendorf v. Taylor, 1 Parker, 0. J., 
 clearly states the rule as to the lex loci as follows : " "When 
 a merchant of France, Holland or England enters into a 
 contract in his own country, he must be presumed to be 
 conversant of the laws of the place where he is, and to ex- 
 pect that his contract is to be judged of and carried into 
 effect according to those laws ; and the merchant with whom 
 he deals, if a foreigner, must be supposed to submit himself 
 to the same laws, unless he has taken care to stipulate for a 
 performance in some other country, or has in some way ex- 
 cepted his particular contract from the laws of the country 
 where he is." 
 
 The doctrine above enunciated seems to have been gen- 
 erally followed. It is sound, just and reasonable, and read- 
 ily understood. 
 
 § 609. Where goods are bargained for by a merchant in 
 one country, to be paid for on delivery by a merchant in 
 another country, who is domiciled there, and has given the 
 order therefor; and the law of the country where the bar- 
 gain is made does not require that there should be any note 
 or memorandum thereof in writing; but the law of the 
 country where the delivery is to be made does require such 
 a memorandum, in such case it seems to be held that the 
 law of the place of delivery governs, at least according to the 
 English authorities. 2 
 
 110 Wheat. E., 36; Hill v. Spear, «Acebal v. Levy, 10 Bing. E., 
 
 50 N. H., 253; Wilcox v. Hunt, 13 376. But see Vidal V. Thompson, 
 
 Pet., 379; Shellits v. Eeineking, 18 11 Martin E., 23, 24, 25. The Lord 
 
 Weekly Dig., 13; Saul v. His Cred- Chancellor, in Pattison v. Mills, 1 
 
 itors, 17 Mass., 587; Alb. Law Dow. & Clark E., 343, said: "If I, 
 
 Jour., Dec. 16, 1882, p. 491; 2 residing in England, send down my 
 
 Kent's Com. (ed. 1866), 454; Thomp- agent to Scotland, and he makes 
 
 Bon v. Ketchum, 8 Johns. E., 192, contracts for me there, it is the 
 
 Kent, Ch. J. same as if I myself went there and 
 
492 SALES. [chap. XXVIII. 
 
 As a beacon, however small, may serve to guide the mar- 
 iner safely into port, so the foregoing notes, however brief, 
 may serve to guide the practitioner in the way of reaching 
 a conclusion as to the lex loci and the lex fori in contracts 
 affected by the statute of frauds. 
 
 made them." See, also, Albion F. 2 Eussell K., 351 ; James v. Cather- 
 & L. Insur. Co. v. Mills, 3 Wils. & wood, 3 Dowl. & Kyi. E., 190. 
 Shaw, 318, 233; Wynne v. Jackson, 
 
APPENDIX I. 
 
 Contains the Section of the Statute op Frauds, of the Several 
 States and Territories, in Relation to the Sale of Goods, 
 "Wares and Merchandise, Chattels and Things in Action, and 
 Personal Property Generally ; and also as to Auction Sales. 
 
 ALABAMA. 
 
 At the present time there is no provision in the statute of 
 frauds of this state relative to the sale of goods, which 
 formerly existed. The code of 1852, § 1551, and prior to 
 the act of 1862, the statute contained the following clause: 
 "Every contract for the sale of goods, chattels or things in 
 action, for a price exceeding $200, unless the buyer accepts 
 and receives part of such goods and chattels, or the evi- 
 dences, or some of them, of such things in action ; or, unless 
 the buyer at the time pay some part of the purchase money, 
 is void." 
 
 The original section as to auction sales contained the 
 words " goods, or things in action are sold, or," etc., was 
 repealed by the act of November 7, 1862, but was inad- 
 vertently retained in the code until 1876, when it was omit- 
 ted. The clause in the code (§ 1863) as to the sale of lands, 
 etc., at public auction, is still in existence. By which act it 
 is provided that the auctioneer, his clerk, or agent, must 
 make a memorandum of the property, the price, the terms 
 of sale, the name of the purchaser, and the name of the 
 person on whose account the sale is made, and such mem- 
 orandum is declared to be a note of the contract. 
 
 The leading cases, prior to the repeal of the above sec- 
 tion, are given in the body of this work. 
 
494 SALES. 
 
 ARKANSAS. 
 
 Digest of the statutes of this state by Edward Wantt r 
 1874; also, Revised Statutes, 1838, ch. 30, § 1, etc.: 
 
 " No contract for the sale of goods, wares, and merchan- 
 dise, for the price of $30 or upwards, shall be binding on the 
 parties, unless, first, there be some note or memorandum, 
 signed by the party to be charged ; or, second, the purchaser 
 shall accept a part of the goods so sold, and actually receive 
 the same; or, third, shall give something in earnest to bind 
 the bargain, or in part payment thereof." 
 
 ARIZONA TERRITORY." 
 
 Compiled laws of the territory from 1864, when the fol- 
 lowing sections were adoped, to 1877, by John E. Hoyt: 
 
 " § 2126. Every contract for the sale of any goods, chat- 
 tels, or things in action, for the price of $100 or over, shall 
 be void, unless, 1st, a note or memorandum of such contract 
 be made in writing, and be subscribed by the parties to be 
 charged forthwith; or, 2d, unless the buyer shall accept 
 or receive part of such goods, or the evidences, or some of 
 them, of such things in action; or, 3d, unless the buyer- 
 shall, at the time, pay some part of the purchase money." 
 
 " § 2127. Whenever any goods shall be sold at auction, 
 and the auctioneer shall, at the time of sale, enter in a sale- 
 book a memorandum specifying the nature and price of 
 the property sold, the terms of the sale, the name of the 
 purchaser, and the name of the person on whose account 
 the sale is made, such memorandum shall be deemed a note 
 of the contract of sale within the meaning of the last sec- 
 tion." 
 
 CALIFORNIA. 
 
 Codes and statutes compiled by Theo. H. Hittill, 1876, 
 Civil Code, 1872, and Supplement of 1880: 
 
 The following contracts are invalid, unless the same, or 
 
 1 Territorial government established February 34, 1863. 
 
APPENDIX I. 495 
 
 some note or memorandum thereof, be in writing, and sub- 
 scribed by the party to be charged, or by his agent. 
 Paragraph 6624, Civil Code, 1872. 
 
 4. An agreement for the sale of goods, chattels, or things 
 in action, at a price not less than $200, unless the buyer ac- 
 cept or l receive part of such goods and chattels, or the evi- 
 dences, or some of them, of such things in action, or pav at 
 the time some part of the purchase money ; but when a 
 sale is made by auction, an entry by the auctioneer in his 
 sale-book, at the time of the sale, of the kind 2 of property 
 sold, the terms of sale, the price, and the names of the pur- 
 chaser and person on whose account the sale is made, is a 
 sufficient memorandum. 
 
 COLORADO. 
 
 General Laws, ch. 39, § 12, subd. 4: 
 
 Every contract for the sale of any goods, chattels or 
 things in action, for the price of $50 or more, shall be void, 
 unless : First, a note or memorandum of such contract be 
 made in writing and be subscribed by the parties to be 
 charged therewith ; or, second, unless the buyer shall accept 
 and receive part of such goods, or the evidence of some of 
 them, of such things in action ; or, third, unless the buyer 
 shall, at the time, pay some part of the purchase money. 
 
 As to sales by auction the statute provides as follows: 
 Whenever goods shall be sold at auction, and the auctioneer 
 shall, at the time of sale, enter in a sale-book a memorandum, 
 specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser and the name 
 of the person for whose account the sale is made, such 
 memorandum shall be deemed a note of the contract of sale 
 within the meaning of the last preceding section. 
 
 iln Newmark's Code of Civil the word "kinds'' is used; in his 
 Procedure, subd. 4 of § 1973, the compilation of 1876 the word 
 words "accept and receive," in- "kind "is used; so, also, in New- 
 stead of " or," are used. mark & Hart's Code. 
 
 2 In Hittill's Supplement, 1880, 
 
496 SALES. 
 
 CONNECTICUT. 
 
 The statute of frauds of this state, as amended in 1875, 
 reads as follows: 
 
 No agreement far the sale of any personal property for 
 $50 or upwards shall be good, unless the buyer shall accept 
 and actually receive part of the property sold, or give some- 
 thing to bind the bargain, or in part payment, or unless 
 some memorandum in writing of such agreement shall be 
 signed by the parties to be charged therewith or their 
 agents. 
 
 The statute, previous to the above amendment, was as 
 follows — General Statutes, 1866, tit. 25, § 2 : 
 
 No contract for the sale of any goods, wares or merchan- 
 dise, for the price of $35 or upwards, shall be allowed to be 
 good, unless the buyer shall accept part of the goods so 
 sold and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment, or unless 
 some note or memorandum in writing of the said bargain 
 shall be made and signed by the parties to be charged by 
 such contract, or by their agents thereunto lawfully author- 
 ized., 
 
 DAKOTA TERRITORY. 1 
 
 Eevised Codes of the territory, 1883, § 920, subd. 4: 
 The following contracts are invalid unless the same, or 
 some note or memorandum thereof, be in writing and sub- 
 scribed by the party to be charged, or by his agent : 
 
 Subd. 4. An agreement for the sale of goods, chattels or 
 things in action at a price not less than $50, unless the 
 buyer accept or receive part of such goods and chattels, or 
 the evidences, or some of them, of such things in action, or 
 pay at the time some part of the purchase money; but 
 when a sale is made by auction, an entry by the auctioneer 
 in his sale-book, at the time of the sale, of the kind of 
 property sold, the terms of sale, the price, and the names of 
 
 1 Territorial government established March 2, 1862. 
 
APPENDIX I. 497 
 
 the purchaser and the person on whose account the sale was 
 made, is a sufficient memorandum. 
 
 § 991. No sale of personal property, or agreement to 
 buy or sell it for a price of $50 or more, is valid, unless : 
 
 1. The agreement, or some note or memorandum thereof, 
 be in writing, and subscribed by the party to be charged, or 
 by his agent ; or, 
 
 2. The buyer accepts and receives part of the things sold, 
 or, when it consists of a thing in action, part of the evidences 
 thereof, or some of them ; or, 
 
 3. The buyer, at the time of sale, p'ays a part of the price. 
 
 § 992. , An agreement to manufacture a thing from ma- 
 terials furnished by the manufacturer or by another per- 
 son is not within the provisions of the last section. 
 
 The following provision as to sales by auction existed 
 prior to the amendment of 1883; it was passed in 1877: 
 
 " Whenever any goods shall be sold at auction and the 
 auctioneer shall, at the time of sale, enter in a sale-book a 
 memorandum specifying the nature and price of the prop- 
 erty sold, the terms of the sale, the name of the purchaser 
 and the name of the person on whose account the sale is 
 made, such memorandum shall be deemed a note of the 
 contract of sale within the meaning of the last section." 
 
 FLOEIDA. 
 
 McOlellan's Digest of the Laws, 1881, ch. 29, § 2; Act of 
 November 15, 1828: 
 
 No contract for the sale of any personal property, goods, 
 wares or merchandise shall be good unless the buyer shall 
 accept the goods or part of them so sold, and actually re- 
 ceive the same, or give something in earnest to bind the 
 bargain, or in part payment, or some note or memorandum 
 in writing of the said bargain or contract be made, and 
 signed by the parties to be charged by such contract, or 
 their agents thereunto lawfully authorized. 
 
 82 
 
498 SALES. 
 
 GEORGIA. 
 
 In February, 1784, an act was passed re-enacting the 
 statute of frauds, 29 Car. II. 
 
 The Code of 1882, § 1950, subd. 7, provides: 
 
 " To make the following obligations binding on the prom- 
 isor the promise must be in writing, signed by the party 
 to be charged therewith, or some person bj him lawfully 
 authorized, viz. : 
 
 "Any contract for the sale of goods, wares and mer- 
 chandise in existence, or not in esse, to the amount of $50 
 or more, except the buyer shall accept part of the goods 
 sold and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment." 
 
 "The foregoing section does not extend 'to the following 
 cases, viz. : 
 
 " 1. Where the contract has been fully executed. 
 
 " 2. "Where there has been performance on one side, ac- 
 cepted by the other in accordance with the contract. 
 
 " 3. Where there has been such part performance of the 
 contract as would render it a fraud of the party refusing to 
 comply if the court did not compel a performance." 1 
 
 § 2621. No note or memorandum in writing shall be nec- 
 essary to charge any one at a judicial sale. 2 
 
 § 2630. In case of sales by auction, the auctioneer shall 
 be considered agent of both parties, so far as to dispense 
 with any further memorandum in writing than his own en- 
 tries. 
 
 IDAHO TERRITORY.^ 
 
 The statute of frauds of this territory is the same as 
 New York except that the clause as to sales of chattels is 
 " two hundred dollars " instead of ''''fifty dollars? 
 
 i Irwin's Code, 1867, adopted in 2 Adopted December 26, 1831. 
 1860, §§ 1940, 1941; Cobb's New 'Territorial government estab- 
 Dig., Appendix III. lished March 3, 1863. 
 
APPENDIX I. 499 
 
 INDIANA. 
 
 Kevised Statutes, 1881; Gavin and Hord's edition of the 
 Statutes, 1862, vol. 1, pp. 348, 351 ; Act of June 9, 1852, § 7: 
 
 § 4910. No contract for the sale of any goods for the 
 price of $50 or more shall be valid, unless the purchaser 
 shall receive part of such property, or shall give something 
 in earnest to bind the bargain, or in part payment, or un- 
 less some note or memorandum in writing of the bargain 
 be made and signed by the party to be charged thereby, ©r 
 by some person thereunto by him lawfully authorized. 
 
 IOWA. 
 
 McClain's Annotated Statutes, 1880; Miller's Code of 
 Iowa, vol. 2, p. 865 : 
 
 § 3663. Except when otherwise specially provided, no 
 evidence of any of the contracts enumerated in the next 
 succeeding section is competent, unless it be in writing and 
 signed by the party charged or by his lawfully authorized 
 agent. 
 
 § 3664. Such contracts embrace : 
 
 1. Those in relation to the sale of personal property, when 
 no part of the property is delivered, and no part of the price 
 is paid. 
 
 § 3665. The provision of the first subdivision of the pre- 
 ceding section, does not apply when the article of personal 
 property sold is not at the time of the contract owned by 
 the vendor and ready for delivery ; but labor, skill or money, 
 are necessarily to be expended in producing or procuring 
 the same. 
 
 KANSAS. 
 
 Compiled Laws, 1879 : 
 
 § 1020. All contracts in writing, signed by the party 
 bound thereby or his authorized agent or attorney, shall im- 
 port a consideration. (In force February 9, 1859.) 
 
 § 3545. In any case founded on contract, where any 
 part of the principal or interest shall have been paid, or an 
 
500 SALES. 
 
 acknowledgment, or any existing liability, debt or claim, or 
 any promise to pay the same, shall have been made, an ac- 
 tion may be brought in such case within the period, pre- 
 scribed for the same, after such payment, acknowledgment 
 or promise; but such acknowledgment or promise must be 
 in writing, signed by the party to be charged thereby. (In 
 force June 1, 1859.) 
 
 MAINE. 
 
 Eevised Statutes, passed August 29, 1883, in force Jan- 
 uary 1, 1884; Statute of Frauds in force April 1, 1841; 
 Eevised Statutes of 1857, ch. Ill, § 5 : 
 
 § 4. No contract for the sale of any goods, wares or 
 merchandise for $30 or more shall be valid, unless the pur- 
 chaser accepts and receives part of the goods, or gives some- 
 thing in earnest to bind the bargain, or in part payment 
 thereof, or some note or memorandum thereof is made and 
 signed by the party to be charged thereby, or by his agent. 
 
 MARYLAND. 
 
 Alexander's collection of the British Statutes, in force in 
 Maryland, 1870: 
 
 Pages 508-512. It has always been understood that the 
 judges under the old government laid it down as a general 
 rule, that all statutes for the administration of justice, 
 whether made before or after the charter (1628), " so far as 
 they were applicable, should be adopted." 1 A clause sub- 
 stantially to the same effect was contained in the third ar- 
 ticle of the Declaration of Rights adopted in 1776, and has 
 been continued, with slight variations, in every subsequent 
 change of the constitution; accordingly, all the provisions 
 of 29 Car. II., ch. 3, have been regarded as of force within 
 the province and the state, without any legislative re-enact- 
 ment. The existing constitution, adopted in 1868, con- 
 tains a clause (article 5) adopting all English statutes in 
 
 1 Sibley v. "Williams, 3 Gill & v. Pearce, 1 Harris & McH., 29 
 Johns., 62(1830); Green v. Drum- (1714); Throop on Val. of Verb, 
 mond, 31 Md., 71 ; Clayland's Lessee Agreements, 48. 
 
APPENDIX I. 501 
 
 force on the 4th of July, 1776, which are locally applicable, 
 and which have been introduced, used and practiced by the 
 courts, subject to the action of the legislature of the state. 
 " XVII " (page 512, Alexander's British Statutes) : "And be 
 it further enacted by the Authority aforesaid, that from and 
 after the said four and twentieth Day of June, no Contract 
 for the Sale of any Goods, Wares and Merchandise, for the 
 Price of ten Pounds Sterling or upwards, shall be allowed to 
 be good, except the Buyer shall accept Part of the Goods so 
 sold, and actually receive the same, or give something in 
 earnest to bind the Bargain, or in Part of Payment, or that 
 some Note or Memorandum, in Writing of the said Bargain 
 be made and signed by the Parties to be charged by such a 
 Contract, or their Agent thereunto lawfully authorized." 
 
 MASSACHUSETTS, 
 
 Public Statutes, 1882; General Statutes, revised and 
 passed December 28, 1859, ch. 105, p. 527, § 5 : 
 
 No contract for the sale of goods, wares, or merchandise, 
 for the price of $50 or more, shall be good or valid, unless 
 the purchaser accepts and receives part of the goods so 
 sold, or gives something in earnest to bind the bargain, 
 or in part, payment; or unless some note or memoran- 
 dum in writing of the bargain be 1 made and signed by 
 the party to be charged thereby, or by some person there- 
 unto by him lawfully authorized. 
 
 MICHIGAN. 
 
 Annotated Statutes, 1882; Ke vised Statutes of 1846, 
 p. 327; Compiled Laws, 1872, ch. 167, g§ 3, 4: 
 
 4699 (§ 3). No contract for the sale of any goods, wares, 
 
 or merchandise, for the price of $50 or more, shall be 
 
 valid, unless the purchaser shall accept and receive part 
 
 of the goods sold, or shall give something in earnest to bind 
 
 the bargain, or in part payment, or unless some note or 
 t 
 
 i"Word " is" is used in the Revised Statutes, 1860. 
 
502 SALES. 
 
 memorandum, in writing, of the bargain, be made and 
 signed by the party to be charged thereby, or by some per- 
 son thereunto by him lawfully authorized. 
 
 4700 (§ 4). Whenever any goods shall be sold at auction, 
 and the auctioneer shall, at the time of sale, enter in a sale- 
 book a memorandum specifjung the nature and price of the 
 property sold, the terms of the sale, the name of the pur- 
 chaser, and the name of the person on whose account the 
 sale is made, such memorandum shall be deemed a mem- 
 orandum of the contract of sale, within the meaning of the 
 
 last section. 
 
 MINNESOTA. 
 
 General Statutes, 4th ed., 1883, ch. 41, tit. II, §§ 7 and 8, 
 pp. 542, 548 : 
 
 § 7. Every contract for the sale of any goods, chattels 
 or things in action, for the price of $50 or more, shall be 
 void, unless, 
 
 First. A note or memorandum of such contract is made 
 in writing, and subscribed by the parties to be charged 
 therewith; or, 
 
 Second. Unless the buyer accepts and receives part of 
 such goods, or the evidences, or some of them, of such things 
 in action ; or, • 
 
 Third. Unless the buyer at the time pays some part 
 of the purchase money. 
 
 § 8. "Whenever goods are sold at public auction, and 
 the auctioneer, at the time of sale, enters into a sale-book a 
 memorandum specifying the nature and price of the prop- 
 erty sold, the terms of the sale, name of the purchaser, and 
 the name of the person on whose account the sale is made, 
 such memorandum shall be deemed a note of the contract 
 of sale within the meaning of the last section. 
 
 MISSOURI. 
 
 Eevised Statutes, 1879, § 2514, p. 422; General Statutes, 
 1865, ch. 106, §6: 
 " No contract for the sale of goods, wares and merchan- 
 
APPENDIX I. 503 
 
 dise, for the price of $30 or upwards, shall be allowed to 
 be good, unless the buyer shall accept part of the goods so 
 sold, and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment, or unless 
 some note or memorandum in writing be made of the bargain, 
 and signed by the parties to be charged with such contract, 
 or their agents lawfully authorized." 
 
 MONTANA TERRITORY. 1 
 
 Eevised Statutes, 1879, 5th Div., § 160 et seq., passed Janu- 
 ary 12, 1872: 
 
 " Every contract for the sale of any goods, chattels, or 
 things in action, for the price of $200 and over, shall be 
 void, unless : First, a note or memorandum of such contract 
 be made in writing, and be subscribed by the parties to be 
 charged therewith ; or second, unless they shall accept or 
 receive a part of such goods, or the evidences, or some of 
 them, of such [things] in action ; third, or, unless the buyer 
 shall at the time pay some part of the purchase money." 
 
 " "Whenever goods shall be sold at auction, and the auc- 
 tioneer shall at the time of sale enter in a sale-book a 
 memorandum specifying the nature and price of the prop- 
 erty sold, the terms of the sale, the name of the purchaser, 
 and the name of the person on whose account the sale is 
 made, such memorandum shall be deemed a note of the 
 contract of sale within the meaning of the last section." 
 
 NEBRASKA. 
 
 Compiled Statutes, by Guy A. Brown, ch. 32, §§ 9, 10. 
 [Territorial Statutes, 1855, Part First, parts of §§ 857, 858, 
 859.] 
 
 " Every contract for the sale of any goods, chattels, or 
 things in action, for the price of $50 or more, shall be void, 
 unless: First, a note or memorandum of such contract be 
 made in writing, and be subscribed by the party to be 
 
 1 Territorial government establiahed May 26, 1864. 
 
504 SALES. 
 
 charged thereby ; or second, unless the buyer shall accept 
 and receive part of such goods, or the evidences, or some of 
 them, of , such things in action; or third, unless the buyer 
 shall, at the time, pay some part of the purchase money." 
 
 " "Whenever goods shall be sold at public auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book a 
 memorandum specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and 
 the name of the person on whose account the sale is made, 
 such memorandum shall be deemed a note of the contract 
 of sale within the meaning of the last section." 
 
 Territorial statutes of 1855 read as follows : 
 
 " Except when otherwise specially provided, no evidence 
 of any of the contracts enumerated in the next succeeding 
 section is competent, unless it be in writing and signed by 
 the party charged, or by his lawfully authorized agent." 
 
 " Such contracts embrace : Those in relation to the sale 
 of personal property when no part of the property is de- 
 livered and no part of the price is paid." 
 
 " The provision of the first subdivision of the preceding 
 section does not apply when the article of personal property 
 sold is not at the time of the contract owned by the vendor 
 and ready for delivery, but labor, skill or money are neces- 
 sarily to be expended in producing or procuring the same." 
 
 NEVADA. 
 
 Compiled Laws, 1873, § 55 et seq.; Territorial Statutes, 
 November 5, 1801, ch. IX, §§ 62, 63. 
 
 " Every contract for the sale of any goods, chattels, or 
 things in action, for the price of $50 or over, shall be void, 
 unless: First. A note or memorandum of such contract 
 be made in writing, and be subscribed by the parties to be 
 charged therewith ; or, Second. Unless the buyer shall ac- 
 cept or receive part of such goods, or the evidences, or 
 some of them, of such things in action; or, Third. Unless 
 the buyer shall, at the time, pay some part of the purchase 
 money." 
 
APPENDIX I. 505 
 
 " "Whenever goods shall be sold at auction, and the auc- 
 tioneer shall, at the time of the sale, enter in a sale-book a 
 memorandum specifying the nature and price of the prop- 
 erty sold, the terms of the sale, thename of the purchaser, 
 and the name of the person on whose account the sale is 
 made, such memorandum shall be deemed a note of the 
 contract of sale within the meaning of the last section." 
 
 NEW HAMPSHIRE. 
 
 General Laws, 1878, chap. 220, sec. 16 ; Statute of Frauds 
 of 29 Car. II., except the land clause, in the fourth section, 
 was passed February 10, 1791 : 
 
 § 16. No contract for the sale of goods, wares, or mer- 
 chandise, for the price of $33, or more, is valid, unless the 
 buyer accepts and actually receives part of the property 
 sold, or gives something in part payment or in earnest to 
 bind the bargain, or unless some note or memorandum 
 thereof is in writing, and signed by the party to be charged; 
 or by some person by him thereto authorized. 
 
 NEW JERSEY. 
 
 Eevised Statutes, revision of 1878, page 445; Act of No- 
 vember 26, 1794, remained in force until January 1, 1875: 
 
 § 6. Every contract for the sale of goods, wares, and 
 merchandise, for the price of $30 or upwards shall be void ; 
 unless (1) a note or memorandum of such contract be made 
 in writing, and signed by the party to be charged thereby 
 or by his agent thereunto lawfully authorized ; or (2) un- 
 less the buyer shall accept part of the goods so sold, and 
 actually receive the same; or (3) unless the buyer shall 
 give something in earnest to bind the bargain or pay some 
 part of the purchase money. 
 
 NEW YORK. 
 
 Eevised Statutes, chapter VII, part II, title II, went into 
 
 effect January 1, 1830 : 6th ed., edited by Geo. W. Oothran. 
 
 § 3. Every contract for the sale of any goods, chattels, or 
 
506 SALES. 
 
 things in action, for the price of $50 or more, shall be void, 
 unless, 
 
 1. A note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be charged 
 thereby; or, 
 
 2. Unless the buyer shall accept and receive part of such 
 goods, or the evidences, or some of them, of such things in 
 action; or, 
 
 3. Unless the buyer shall, at the time, pay some part qi 
 the purchase money. 
 
 § 4. " "Whenever goods shall be sold at public auction, 
 and the auctioneer shall, at the time of sale, enter in a 
 sale-book or memorandum specifying the nature and price 
 of the property sold, the terms of the sale, the name of the 
 purchaser, and the name of the person on whose account the 
 sale is made, such memorandum shall be deemed a note of 
 the contract of sale within the meaning of the last section." 
 
 § 8. Every instrument required by any of the provisions 
 of this title to be subscribed by any party may be subscribed 
 by the lawful agent of such party. 
 
 The " Act for the prevention of frauds," passed February 
 26, 1787, as found in the " Laws of the State of New York," 
 p. 79, corresponds with the seventeenth section of the Eng- 
 lish statute of frauds. 
 
 OREGON. 
 
 Code of Civil Procedure, 1862, in force June 1, 1863: 
 § 775, subd: 5. In the following cases the agreement is 
 void, unless the same, or some note or memorandum thereof, 
 expressing the consideration, be in writing and subscribed by 
 the party to be charged, or by his lawfully authorized agent ; 
 evidence, therefore, of the agreement shall not be received 
 other than the writing, or secondary evidence of its contents, 
 in the cases prescribed by law. 
 
 §5. An agreement for the sale of personal property at 
 a price not less than $50, unless the buyer accept and receive 
 some part of such personal property, or pay at the time 
 
APPENDIX I. 507 
 
 some part of the purchase money; but when the sale is 
 made by auction, an entry by the auctioneer in his sale- 
 book at the time of the sale, of the kind of property sold, 
 the terms of the sale, the price, and the names of the pur- 
 chaser and person on whose account the sale is made, is a 
 sufficient memorandum. 
 
 SOUTH CAROLINA. 
 
 General Statutes, 1882, p. 587: 
 
 By an act of the province of South Carolina, passed 
 December 12, A. D. 1712, several " statute laws of the king- 
 dom of England or South Britain," therein copied at length, 
 are declared to be in " as full force, power and virtue, as if 
 the same had been specially enacted and made for this 
 province, or as if the same had been made and enacted 
 therein by any general assembly thereof." Among these 
 statutes is the 29th Car. II., ch. 3. 
 
 UTAH TERRITORY. 1 
 
 Compiled Laws, 1876, § 1010: 
 
 The statute of frauds of Utah is identical with that of 
 New York, except that the clause as to the sale of chattels 
 is " three hundred dollars " instead of fifty dollars. 
 
 VERMONT. 
 
 Kevised Statutes, 1880, § 982; General Statutes of 1863, 
 ch. 66, §2: 
 
 No contract for the sale of goods, wares or merchan- 
 dise, for the price of $40 or more, shall be valid, unless the 
 purchaser accepts and receives part of the goods so sold, or 
 gives something in earnest to bind the bargain, or in part 
 payment, or unless some note or memorandum of, the bar- 
 gain is made in writing, and signed by the party to be 
 charged thereby, or by some person thereunto by him law- 
 , fully authorized. 
 
 1 Territorial government established September 9, 1850. 
 
508 SALES. 
 
 WASHINGTON TERRITORY. 1 
 
 Laws of 1853, pp. 355, 380; Code 1881, § 2326: 
 No contract for the sale of any goods, wares, or merchan- 
 dise, for the price of $50 or more, shall be good and valid 
 unless the purchaser shall accept and receive part of the 
 goods so sold, or shall give something in earnest to bind 
 the bargain, or in part payment, or unless some note or 
 memorandum in writing of the bargain be made and signed 
 by the party to be charged thereby, or by some person 
 thereunto by him lawfully authorized. 
 
 WISCONSIN. 
 
 Eevised Statutes of 1858, ch. 107, §§ 3 and 4; Eevised 
 Statutes of 1878, §§ 2308, 2309 and 2327. 
 
 Every contract for the sale of any goods, chattels or 
 things in action, for the price of $50 or more, shall be void 
 unless : 
 
 1. A note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be charged 
 therewith ; or 
 
 2. Unless the buyer shall accept and receive part of such 
 goods, or the evidences, or some of them, of such things in 
 action; or . 
 
 3. Unless the buyer shall at the time pay some part of 
 the purchase money. 
 
 Whenever goods shall be sold at public auction, and the 
 auctioneer shall at the time of the sale enter in a sale-book a 
 memorandum specifying the nature and price of the prop- 
 erty sold, the terms of the sale, the name of the purchaser 
 and the name of the person for whose account the sale is 
 made, such memorandum shall be deemed a note of the 
 contract of sale within the meaning of the last section. 
 
 1 Territorial government established March 2, 1853, 
 
APPENDIX I. 509 
 
 § 2327. Every instrument required under any of the pro- 
 visions of this title to be subscribed by any party, may be 
 subscribed by the agent of such party lawfully authorized 
 thereto. 
 
 WYOMING TERRITORY. 1 
 
 Eevised Statutes, 1887; Compiled Laws, 1876 (by J. E. 
 Whitehead), ch. 57, § 2, page 358: 
 
 Every contract for the sale of any goods, chattels or 
 things in action, for the price of $50 or more, shall be void, 
 unless: First, a note or memorandum of such contract be 
 made in writing and be subscribed by the party to be 
 charged thereby ; or, second, unless the buyer shall accept 
 and receive part of such goods, or the evidences, or some 
 of them, of such things in action ; or third, unless the buyer 
 shall at the time pay some part of the purchase money. 
 
 i Territorial government established July 25, 1868. 
 
APPENDIX II. 
 
 Section 17 of the Statute of Frauds, 29 Car. II. (A. D- 
 1677), as contained in the fifth volume of the " Statutes of 
 the Realm," published in London, in 1819, reads as follows 
 {verbatim et literatim) : 
 
 XVII. " And bee it further enacted by the authority afore- 
 said That from and after the said f ower and twentyeth day 
 of June noe Contract for the Sale of any Goods Wares or 
 Merchandises for the price of ten pounds Sterling or up- 
 wards shall be allowed to be good except the Buyer shall 
 accept part of the Goods soe sold and actually receive the 
 same or give something in earnest to bind the bargaine or 
 in part of payment, or that some Note or Memorandum in 
 writing of the said bargaine be made and signed by the 
 partyes to be charged by such Contract or their Agents 
 thereunto lawfully authorized." 
 
 LORD TENTERDEN'S ACT. 
 19 George IV., May 9, 1828. 
 
 EXTRACTS FROM. 
 
 " An Act for rendering a written memorandum necessary 
 to the validity of certain promises and engagements." 
 
 § 7. " And whereas, by an act passed in England in the 
 twenty-ninth year of the reign of King Charles the Second, 
 entitled ' An act for the prevention of frauds and perjuries,' 
 it is among other things enacted, that from and after the 
 24th day of June, 1677, no contract for the sale* of any 
 goods, wares and merchandises for the price of £10 or up- 
 wards, shall be allowed to be good, except the buyer shall 
 accept part of the goods so sold and actually receive the 
 same, or give something in earnest to bind the bargain, or 
 
APPENDIX II. 511 
 
 in part of payment, or that some note or memorandum in 
 writing of the said bargain be made and signed by the par- 
 ties to be charged by such contract, or their agents there- 
 unto lawfully authorized; and whereas a similar enactment 
 is contained in an act passed in Ireland in the seventh year 
 of the reign of King William the Third; and whereas it 
 has been held that the said recited enactments do not ex- 
 tend to certain executory contracts for the sale of goods, 
 which nevertheless are within the mischief thereby intended 
 to be remedied ; and it is expedient to extend the said enact- 
 ments to such executory contracts : 
 
 " Be It Enacted, that the said enactment shall extend to 
 all contracts for the sale of goods of the value of £10 and 
 upwards, notwithstanding the goods may be intended to be 
 delivered at some future time, or may not at the time of 
 such contract be actually made, procured or provided, or fit 
 or ready for delivery, or some act may be requisite for the 
 making or completing thereof, or rendering the same fit for 
 delivery." 
 
INDEX. 
 
 [references are to sections.] 
 
 ABBOTT, C. J. 
 
 opinion of, as to successive sales falling within the statute of frauds, 
 236. 
 
 ABBREVIATIONS. 
 
 in telegrams, may be explained, 459. 
 or in a letter or memorandum, 459. 
 (See Telegraph, Contracts by.) 
 
 ACCEPTANCE OF GOODS. 
 
 meaning of acceptance, 244, 246, 250, 318, 323. 
 
 statute of frauds as to acceptance, 244, 247, 272. 
 
 acceptance sufficient, when, 61, 287. 
 
 an early case on the subject, 21, n. 1. 
 
 acceptance necessary, of anything built or manufactured, 31. 
 
 or delivered under a verbal contract, 292, 295. 
 
 in sales of goods, 47, 113, 245, 276, n. 2. 
 
 Stone, A. W., J., opjnion of, on acceptance, 295. 
 
 acceptance implied, when, 185, 282a, 283, n. 2. 
 
 right to refuse to accept, 109, 167, 282. 
 
 in bargain for a chattel, 93. 
 
 case of Grafton v. Armitage distinguished, 93. 
 
 acceptance of a crop of tobacco, 164. 
 
 acceptance waives question of certain work, when, 123. 
 
 waives defects, when, 123. 
 statute of frauds of the several states as to acceptance, 245. 
 variance in phraseology as to, 245. 
 
 acceptance and receipt of goods necessary, 245, 248, 268. 
 may be by whom, 281. 
 
 "accept," the word does not appear in the Iowa statute, 245, n. 6. 
 the word " delivered" used in place of, 245, n. 6. 
 sufficient to guard against fraud, 245, n. 6. 
 
 accepting and receiving, distinction between, 246. 
 
 where purchaser refuses to allow the goods to remain in his 
 place, 322. 
 
 acceptance must be unconditional, 247, 260, 280. 
 
 words not sufficient, 250, 253, 254, 255. 
 33 
 
514 SALES. 
 
 ACCEPTANCE OF GOODS — continued. 
 
 physical acts necessary, 247, 250, 253, 254, 255, 266, 268, 271. 
 to constitute acceptance vendee must receive the goods as 
 
 owner, 248, 250, 251, 263, 269. 
 his right to inspect goods after they are delivered, 282. 
 must be such as to preclude objection to quantum and quality, 
 
 248, 254, 263, 267, 268, 270, 282. 
 and free from seller's lien, 272. 
 the case, Ex parte Safford, Be Downing, 249. 
 where goods are set aside by vendee, 249. 
 Lowell, J., opinion of, as to what constitutes acceptance and 
 
 receipt, 249. 
 distinction between, 249, 314. 
 where circumstances indicate, 249. 
 in case of receipt without acceptance, 325. 
 Learned, P. J., opinion of, on acceptance and receipt, 250. 
 acceptance may be before or after receipt, 250, 253, 260, 261, 276, 
 
 316. 
 intention, as an element of acceptance, 250, 252, 254, 256, 267, 269, 
 
 282a. 
 acceptance not inferred from the fact that goods came to possession 
 
 of vendee, 250, 270, 274, 282, 325. 
 may be inferred from circumstances, 253, 278, 282, 282a. 
 effect of acknowledgment of vendee to a third person that he pur- 
 chased the goods, 251. 
 case of Gilman v. Hill, on acceptance within the statute, 252, 254, 
 
 256. 
 Eastman, J., opinion of, as to acceptance, 252. 
 
 acceptance validates contract, although the work was done by 
 another than the person employed, 123. 
 constructive acceptance sufficient, 253, 254, 255, n. 1, 271. 
 court to pass upon, 256. 
 what is sufficient evidence of, 252, 262, 267. 
 test of constructive acceptance, 271. 
 what will amount to acceptance, 253, 254, 263, 272, 274. 
 case of Gardet v. Belknap, 254. 
 words insufficient to constitute acceptance; illustration, 254, 255, 
 
 278. 
 case of Shindler v. Houston, as to what is an acceptance, 255. 
 acceptance a question of law, when, 257. 
 
 may depend upon the conclusion of the jury, 257, 263. 
 embarrassments of the court in determining the question, 258. 
 acceptance validates a void contract, 277. 
 acceptance of part of the goods, effect of, 258, 260, 268, 281, 318. 
 when an entire contract, acceptance of part is acceptance of whole, 
 268a. 
 
INDEX. 515 
 
 ACCEPTANCE OP GOODS— continued. 
 
 does not preclude vendee from objecting to, 258. 
 
 in executory contracts, rule as to, 258, 262. 
 
 in purchase by order or sample, 258. 
 
 using part of goods, option of purchaser, 259, 279. 
 
 when there has .been part payment, 295. 
 
 exercise of option to accept, 259, 279. 
 
 exercise of ownership, 263. 
 
 invoice sent and returned, no evidence of acceptance, 259, 280. 
 
 nor where goods are sent to the vendee, 274. 
 
 acceptance under the New York statute of frauds, 261. 
 conflict of authority as to when goods must be accepted, 261. 
 case of McKnight v. Dunlap, as to acceptance, 261. 
 Paige, J., opinion of, as to time of acceptance, 261. 
 proposition and acceptance, distinction, 261. 
 acceptance validates an inoperative contract, 261, n. 4, 277. 
 bailee; vendor may hold goods as bailee of vendee, 262, 263, 264, 
 
 266, 273. 
 what will and what will not amount to an acceptance in such case, 
 
 262, 265, 273. 
 case of Rappleye v. Adee, where mark of purchaser is put upon 
 
 chattels, 262, 263. 
 where a part of the goods are delivered under a verbal contract, 279. 
 vendor may act as agent of vendee in selling goods, 263. 
 case of Lansing v. Turner, where goods muiained in vendor's store 
 
 after purchase, 264. 
 where consideration is paid, property vests in vendee, 264. 
 an example from Blackstone, 264. 
 change of possession, when complete, 263, 265. 267. 
 
 oral contract, what will not amount to an acceptance under ; 
 
 case of Tempest v. Fitzgerald, 266, 268. 
 parol purchase of an animal to be taken away in a few days and 
 
 it dies meantime, no acceptance, 266, 269. 
 Park, J., opinion of, as to acts necessary to show acceptance, 
 
 266, 267. 
 parol contract for sale of a horse, and seller borrows it for a 
 ' time, sufficient evidence of acceptance, 267. 
 acceptance of a wagon coupled with a condition, 274. 
 what will amount to an acceptance of goods ; case of Atherton v. 
 
 Newhall, 268. 
 Gray, C. J., opinion of, on the subject of acceptance sufficient to 
 
 satisfy the statute of frauds, 268. 
 acceptance may be by whom, 268, 281. 
 notice of non-acceptance, effect of, 268, 279, 280, 322. 
 
 case of Cooke v. Millard, on acceptance, necessary to bind the 
 vendee, under an executory contract, 269, 277. 
 
51G SALES. 
 
 ACCEPTANCE OF GOODS — continued. 
 
 Dwight, C, opinion of, on acceptance, and where goods are set 
 apart, 269. 
 
 assent of parties necessary to selection of goods, 270. 
 
 ■vendor may select goods for vendee, 270, 281. 
 
 where sale involves weight or measure, 269. 
 vendee's implied authority that vendor select goods, 270. 
 not an acceptance in such case, when, 281. 
 goods put in a deliverable condition does not pass title, 270. 
 storage of goods by seller does not imply acceptance by buyer, 271. 
 
 order for goods void until acceptance, 271, 280. 
 
 offer of purchase is subject to dissent, 316. 
 
 case of Clarke v. Labreche, 271. 
 
 correspondence may show acceptance, 271. 
 
 Blodgett, J., opinion of, on the subject, 271. 
 
 involving constructive acceptance, 271. 
 
 storage of the goods, effect of, 271. 
 
 removal of goods to a place appointed by the buyer does not 
 amount to an acceptance, 271. 
 
 marking goods does not, 307. 
 
 nor where the seller holds dominion over the goods, 272. 
 
 nor where the seller has a lien on the goods, 272. 
 "accepts and receives," words of the California statute of frauds, 
 275. 
 
 instance of non-acceptance, and reasons for, 275, 279. 
 
 acceptance and delivery, example of, 276. 
 
 acceptance of a specific chattel, 276. 
 
 where there is acceptance of the part delivered, 317. 
 
 void contract validated by acceptance, 277. 
 acceptance of more goods than were bought will take case out of 
 
 the statute of frauds, 277. 
 receipt without acceptance, instance of, 325. 
 
 case of Amson v. Dreher, as to what is sufficient evidence of accept- 
 ance, 277, 315. 
 test applied, 310. 
 bill of lading sent, a circumstance, how far evidence of, 277, 278. 
 
 Cooley, C. J., opinion of, on acceptance, 279, 
 
 promise not in writing, instance of, 279. 
 no acceptance, where goods were ordered and invoice sent and re- 
 turned with objections, 280. 
 or where goods are lost, when, 462. 
 deductions upon questions of acceptance, 281. 
 
 vendee selling the goods without inspection is tantamount to ac- 
 ceptance of them, 282. 
 insurance of goods by vendee is not an acceptance, 282. 
 reasonable time, goods not accepted should be rejected within 282. 
 
INDEX. 517 
 
 ACCEPTANCE OF GOODS — continued. 
 
 usage may govern as to right of rejection of goods, 282a. 
 delay in rejecting goods will work an acceptance, when, 282a. 
 acceptance by symbolical delivery of goods, 831. 
 of sample as part of bulk, 309, 310. 
 of offer by telegraph, 450. 
 an acceptance may satisfy the statute, yet not preclude vendee from 
 
 rejecting the goods, 318, 321. 
 or putting in evidence as to the terms of the contract, 310. 
 acceptance, notwithstanding immediate notice sent that goods are 
 
 not like sample, 319. 
 acceptance, when terms of contract not complied with, 310. 
 acceptance to let in parol evidence, different from acceptance of 
 
 fulfillment of contract, 317. 
 acceptance found, where goods were sold by sample, and resold by 
 
 buyer before delivery to him, 317. 
 acceptance and receipt, distinction between, in goods sold by sam- 
 ple, 314. 
 where the acceptance was not sufficient, an attachment held, 
 
 278. 
 (See Receipt and Delivery.) 
 
 ACTION. 
 
 what is the cause of action, 7 ). 
 
 where work ends in nothing that can be the subject of a sale, 
 action cannot be for goods sold and delivered, 88. 
 for non-acceptance, 93, 93, 279. 
 
 action not maintainable for damages until acceptance, 275. 
 action is to be brought by party on whose account an auction sale is 
 made, 535. 
 
 when action for goods sold cannot be maintained, 38. 
 action for goods sold and delivered, 93. 
 
 breach of contract to manufacture, action for, 101. 
 
 special action on the case, when, 112. 
 
 AGENT LAWFULLY AUTHORIZED TO SIGN, 
 agent, definition of, 485. 
 
 the word agent includes general or special brokers, factors and 
 
 auctioneers, 485. 
 statute of frauds of the several states as to agent, recapitulation 
 of, 48G. 
 authority and powei- of an agent in general, 108, 485. 
 rules applicable to acts of principal apply to acts of agent, 487. 
 signature of agent is the signature of the principal, 489. 
 agent of one or both parties, effect of, 487. 
 agent's contract for the manufacture of goods, 97. 
 agent's authority may be proved by parol, 485, 487. 
 
518 SALES. 
 
 AGENT LAWFULLY AUTHORIZED TO SIGN — continued. 
 
 agent may sign a memorandum and bind his principal, 435, 485, 486, 
 
 487, 489, 490, 492. 
 he may receive payment for his principal, 389. 
 as to ratification of agent's authority, 485. 
 agent signing memorandum for his own use, principal not bound, 
 
 492, n. 3. 
 agent may accept goods, when, 280. 
 agent may be a witness, when, 487. 
 agent's contract by telegraph, 462. 
 
 case of Wiener v. Whipple, as to acts of agent to bind his prin- 
 cipal, 489. 
 agent's memorandum ; example of sufficiency of, 490, 492. 
 agent's entry in a memorandum book in presence of the parties, 
 
 effect of, 490. 
 memorandum made and not signed, statute is not satisfied, 491, 
 parol proof inadmissible to explain substance of the writing in 
 a memorandum, 502. 
 agent specially authorized, 472, 488. 
 
 acts of a special agent will bind his principal, 472. 
 
 special power in agent cannot bind his principal if he exceed 
 
 his authority,. 488. 
 if agent exceeds his special authority he is personally liable, 
 488. 
 personally liable where name of Ms principal is not 
 disclosed, 435, 492. 
 example of, 492. 
 
 personally bound in sale of stock in such case, 492. 
 agent liable for loss where he makes a contract without dis- 
 closing the name of his principal, 492. 
 principal liable for acts of agent when he has reaped the bene- 
 fit of contract, 435. 
 brokers, definition of, 493. 
 
 a broker is a middleman, 493. 
 he acts in the name of his principal, 493. 
 power of broker generally, 494. 
 broker for both parties, when, 487. 
 a broker for both parties may bind them, 495, 496. 
 presumption that a broker is agent of both parties may be re- 
 butted, 495, 496. 
 of contract of purchase by, 474, 494, 500. 
 
 contract to buy and sell stocks for another is without the stat- 
 ute, 133. 
 when does property pass in such contracts, 494. 
 no effect goes out of the broker; his signature has no effect as 
 his own, 494. 
 
INDEX. 519 
 
 AGENT LAWFULLY AUTHORIZED TO SIGN — continued, 
 signature of a broker generally, 474. 
 broker lias no possession of the goods bought or sold, 494. 
 he has no control over the delivery of goods sold, 494. 
 memorandum of, 474, 498, 500. 
 
 case of Newberry v. "Wall, as to a broker's memoran- 
 dum, 498. 
 broker's memorandum in his book, effect of, 498. 
 memorandum of the purchaser's broker is binding, al- 
 though his name does not appear therein, 500. 
 case of Dykers v. Townsend, as to a broker's memoran- 
 dum, 500. 
 broker's entry in his book not signed by either party is 
 
 not binding, 501. 
 parties who have not signed not bound, 501. 
 Kent. C. J., opinion of, upon the sufficiency of a bro- 
 ker's memorandum, 502. 
 memorandum of seller shown to broker, effect of, 503. 
 memorandum comprised in entry of a party and of the broker, 
 
 502. 
 memorandum of broker, when too vague, 503. 
 what the memorandum must contain, 502. 
 case of Bailey v. Ogden, as to broker's memorandum, 503. 
 broker's bought and sold note, memorandum in, 496. 
 
 delivery of bought and sold note to the respective parties con- 
 stitutes a valid contract, 496. 
 entry of sale by broker in his book, 496. 
 evidence of the contract, 496. 
 is the entry by a broker in his book of a sale binding on 
 
 the parties where no sale-note is delivered, 497. 
 case of Coddington v. Goddard, as to broker's entry, 497. 
 broker's entry in his sale, book sufficient if the names of the 
 parties and the terms of the contract appear, 497. 
 if different notes be delivered to the parties by the broker there is 
 
 no binding contract, 496. 
 a valid contract is made if the broker deliver the same note to the 
 
 respective parties, 498. 
 effect of notice of execution of a broker's note, 499. 
 example of a bought and sold note, 498. 
 sale of goods to arrive, made by broker, 498. 
 
 a bought-note delivered by the broker to the purchaser, the pur- 
 chaser is bound, 499. 
 what is sufficient evidence of such delivery, 499. 
 
 where party refuses to accept goods after a contract has been 
 made by a broker, 499. 
 
520 SALES. 
 
 AGENT LAWFULLY AUTHORIZED TO SIGN — continued. 
 
 what will amount to a delivery and acceptance of goods under 
 a broker's contract, 499. 
 • (See Memorandum in Writing.) 
 
 AGREEMENT. 
 
 word "agreement" does not appear in section seventeen, 3. 
 there must be a quid pro quo in agreements, 17. 
 word in section 4 requires stricter construction than word " bar- 
 gain," in seventeenth section, 26. 
 agreement with a workman to put materials together, not a 
 
 contract of sale, 81. 
 agreement in part valid and in part void may be enforced pro 
 tanto, 107. 
 
 ALLOWED TO BE GOOD. 
 
 words " allowed to be good," in the statute of frauds, criticised and 
 construed, 10, 402. 
 
 AMES, J. 
 
 opinion of, as to shares of stock falling within the statute, 150. 
 
 APPENDIX. 
 
 I. Statute of frauds of the several states and territories, in relation 
 
 to sales of goods, wares and merchandise, chattels and things 
 in action, and personal property generally. 
 
 II. English statute of frauds, section 17, as to the sale of goods, 
 
 wares and merchandises. 
 Lord Tenterden's Act, in relation to executory contracts and as 
 part of the statute of frauds. 
 
 AUCTION AND AUCTIONEERS, 
 of sales by auction, 18, 518. 
 are not a warranty of title, 546. 
 meaning of, 515. 
 auctions in early times, 515. 
 Dutch custom in auction sales, 515. 
 doubts expressed at one time whether auction sales were within 
 
 the statute of frauds, 18. 
 formerly held not to be within the statute, 18. 
 that such sales precluded the possibility of perjury, 18. 
 Lord Mansfield, on sales by auction, 18. 
 
 Lord EUenborough, on auction sales : his criticism of Lord Mans- 
 field's views, 18. 
 sales by auction founded upon mutuality, 515. 
 statute of the several states as to auction sales, 517. 
 
INDEX. 521 
 
 AUCTION AND AUCTIONEERS — continued. 
 
 Arizona, California, Colorado, Dakota, Georgia, Idaho, Minne- 
 sota, Montana, Nebraska, Nevada, New York and Wisconsin, 
 statute of, as to sales by auction, and what deemed a sufficient 
 memorandum in, 517, 517, n. 1, 517, n. 2. 
 statute of frauds in general applies to auction sales, 517, 518, 
 
 567. 
 memorandum necessary in sales by auction, 18, 517, 517, n. 2, 
 521, 581. 
 auction sale, description of an, 519. 
 
 early case in South Carolina, as to manner of an auction, 519. 
 early case in Massachusetts, as to sales by auction, 520. 
 Parker, C. J., opinion of, as to auction sales being within the stat- 
 ute, 520. 
 common law is not applicable to auction sales where the statute pre- 
 vails, 569. 
 Savage, J., opinion of, upon auction sales, 521, 525. 
 construction of the statute as to, 527, 545. 
 
 what the memorandum to contain, 523, 524, 525. 
 
 " terms " of sale to appear, 531. 
 
 " parties" must be named or described, 523, 526, 528, 542. 
 
 " price " must be stated, 531, 553. 
 
 defective memorandum, example of, 526, 526, n. 2, 528, 535. 
 
 partial memorandum insufficient, 545. 
 
 case of Hicks v. Whitmore, as to memorandum, 526. 
 
 memorandum to be made in a sale-book, 526. 
 
 must be "at the time " of the sale, 528, 529, 531. 
 " during the day " not sufficient, 528. 
 "point of time," in making, material, 528, 
 strictly construed, statute is as to auction sales, 530, 531, 545. 
 intention of the legislature as to, 531. 
 requisites of the statute, as to auction sales, 530. 
 Story, J. , opinion of, upon auction sales, 532. 
 auction sale running through several days, what necessary as to the 
 
 memorandum, 538, 541. 
 what a sufficient compliance with the statute, 538. 
 deductions from the cases as to auction sales, 581. 
 when is a sale by auction consummated, 540, 572. 
 principle governing auction sales, 541. 
 
 sale at auction " an entire contract," 235, 541, 541, n. 3, 542. 
 Nelson, C. J., opinion of, as to different purchases at auction, 
 
 542. 
 when each parcel sold by auction a separate sale, 541. 
 when entered separately, 538. 
 governed by the same rules as other sales, 541. 
 
522 
 
 SALES. 
 
 AUCTION AND AUCTIONEERS — continued. 
 
 statute applies, where several successive parcels sold exceed the 
 
 sum mentioned in the statute, 235, 541. 
 part delivery takes the case out of the statute, 541, n. 3. 542. 
 description of seller, what sufficient, 543. 
 must be clearly indicated in memorandum, 543. 
 " the proprietor," words of description, sufficient, 543. 
 " on the part of the vendor," words insufficient, 543. 
 owner's name must be disclosed at the sale, reasons why, 542. 
 when in the catalogue, 542. 
 when not disclosed, 546. 
 when a party holds himself out as owner, when in fact he 
 
 is simply agent, liable, 542. 
 principal bound, where agent buys goods at auction, when, 
 
 546, n. 1. 
 subsequent writings by the seller will cure certain omis- 
 sions, when, 545. 
 sales are governed by what is said by auctioneer, 546. 
 "no contract of sale," by auction, when, 550. 
 unless with bidder's consent, 550. 
 when taking down bidder's name is not a signing, 550. 
 when may the remedy be taken against a purchaser for not com- 
 plying with an auction sale, 551. 
 misrepresentation at an auction sale will render the sale void, 
 
 557, 55S. 
 court of equity will set aside a sale induced by misrepresenta- 
 tion, 566. 
 in case of fraud the sale is void, 558. 
 one party to a contract cannot sign for the other, 535. 
 parol evidence may be introduced to apply the document to the 
 subject, 523. 
 but not to show the intention of the parties, 524. 
 trustee, as auctioneer, cannot bind the purchaser, 535. 
 conditions in sale by auction, what are, 18, 549. 
 
 sale-book must state particulars of sale, 529, 546. 
 
 conditions must be entered in, 552. 
 
 instance of a material omission, 529. 
 
 as to conditions, sale governed by what is said by auctioneer 
 
 546. 
 conditions must be made known at the sale, 549. 
 as to retraction of bid, mentioned in the conditions, 549. 
 what conditions violate the statute, 549. 
 when is the bidder not bound by, 566. 
 
 case of Jones v. Nanney, as to retracting a bid, contrary to con- 
 ditions, 550. 
 
INDEX. 523 
 
 AUCTION AND AUCTIONEERS — continued, 
 example of different conditions, 549, n. 3. 
 where a sale is suspended, and resumed same day, and bids 
 
 continue, 550. 
 a purchaser not bound, not liable to pay anything, 550. 
 conditions ; when may remedy be taken against a purchaser for 
 
 not complying with, 551. 
 when is purchaser bound by the conditions, 552. 
 conditions, announced contrary to the written conditions, shown 
 
 by parol proof, 551. 
 special conditions; purchaser bound by, although he did not see 
 
 them, when, 552. 
 catalogue ; where auctioneer's clerk signs a ledger in which chat- 
 tels are specified differently from, sale void, 553. 
 condition, where the " highest bidder to be the purchaser," ef- 
 fect of, 559. 
 condition, "without reserve," meaning and effect of, 562. 
 goods are to bo sold whether they bring the value or not, 562. 
 " positive sale," condition as to, rule in such case, 562. 
 special conditions, 552. 
 
 parol evidence to show conditions of sale, 551. 
 " sample," sale of goods by, at auction, 18. 
 when sample deemed part of the bulk, 18. 
 a sale by sample at an auction, illustration of, 529. 
 requisites of such a sale, 529. 
 
 instance of a material omission in the sale-book, 529. 
 custom of allowance for such goods as do not correspond with 
 
 sample, 529. 
 inspection of goods sold by sample, 529. 
 
 instance of sale by auction of goods by sample, in parcels, 542. 
 sale of standing corn at auction, purchaser entitled to gather 
 and carry it away, 546. 
 pew, sale of, by auction, 525. 
 statute of frauds applies to sale of pews, 525. 
 where part of the name is omitted in the entry in sale of, 525. 
 consideration, contract void for want of, when, 554. 
 nudum pactum, what contract is, 554. 
 contract to buy "on joint account" at an auction sale, within 
 
 the statute, 555. 
 where two parties agree to divide the profits of goods bought at 
 auction, one agreeing not to bid against the other, is void, 554. 
 " stolen goods " sold at auction pass no title, 563. 
 Nelson, C. J., opinion of, upon sale by auction of stolen goods, 
 
 563. 
 owner presents the better title, as between him and the pur- 
 chaser of stolen goods, 563. 
 
524 SALES. 
 
 AUCTION AND AUCTIONEERS — continued. 
 
 who entitled to the property in such case, 5G3. 
 bidder at an auction sale, 540. 
 his consent necessary, 540. 
 otherwise sale is not consummated, 550. 
 when taking down the bidder's name is not a signing, 550. 
 public policy; it is against, for persons to agree not to bid 
 
 against each other, 554, 556, 559. 
 fraudulent intent, necessary to render joint bidding void, 555. 
 joint bidding, when the object is to depress and chill the sale, is 
 
 "void, 555. 
 joint bidding may be valid, when, 555, 557. 
 rules not as strict in auction sales as sales in chancery, 555. 
 puffers and by-bidders, unlawfulness of, 556, 559. 
 "highest real bidder," the principle of auction sales implied, 
 
 556, 558. 
 he is not bound if there has been by-bidding, 556, 558, 559. 
 owner may employ bidders to prevent property from being 
 sacrificed, when, 557, 558. 
 employment of bidders, fraudulent or not, according to circum- 
 stances, 557. 
 bidders at an auction must be real and sincere, 557, 558. 
 Kent, Chancellor, opinion of, upon by-bidding and employment of 
 
 bidders, 557. 
 case of a sale being declared void on account of by-bidding, 559. 
 owner may limit the price, 557. 
 
 sale void, if fraudulent means be adopted by a creditor to secure the 
 goods, 557, n. 5. 
 custom may govern the conduct of auction sales, 558. 
 misrepresentation of the character of the goods will vitiate the sale, 
 
 558. 
 same general rules apply to sales of personalty as to sales of realty 
 at auction, 559, 561. 
 how far may an auctioneer bid, 559. 
 where auctioneer and agent of owner bid, and defendant bids 
 
 and property is knocked down to him, sale void, 559. 
 sale valid when real bid precedes that of the bid at which the 
 
 property is knocked down, though a puffer had bid, 560. 
 highest bid preceding that of a puffer's, sale voidable, 560. 
 a sale where a puffer has bid should be void, 560. 
 Smith, J., opinion of, on puffers, 561. 
 a court of equity will not justify by-bidding, 561. 
 a purchaser released from purchase, when, 561. 
 a bid may be declined, 564. 
 when may a bid be declined, 564. 
 bid of a minor, may be, 564. 
 
INDEX. 525 
 
 AUCTION AND AUCTIONEERS — continued, 
 so also a bid of a lunatic, 561. 
 or of an irresponsible person, 564. 
 question of good morals, where goods sold at auction at less than 
 
 their real value, 558. 
 Sceavola's opinion on the subject, 558. 
 auctioneers, their duties and liabilities. 
 who is an auctioneer, 516. 
 as an agent, 517, 522. 
 his agency defined, 540. 
 auctioneers formerly called brokers, 516, n, 1. 
 agent for both parties, when, 528, 532. 
 agent for the vendor, 530, 532, 533, 567. 
 character as agent, 540. 
 character of employment, 527. 
 authority of an auctioneer, 516, 550, n. 1, 571 
 is the auctioneer agent of the buyer, 532, 533. 
 agency of auctioneer, exists when, 522, n. 1, 528, 571. 
 authority to write down the purchaser's name, when, 522, 528. 
 he is the channel through which the contract is made, 540. 
 agency of the auctioneer ceases if statute violated, 530. 
 of the skill required by an auctioneer, 527. 
 law of agency generally applies, 530. 
 auctioneer to exercise ordinary skill, 527. 
 liable for gross negligence, 527. 
 auctioneer, a disinterested party, 532. 
 but he has an interest in the sale made, 540. 
 is agent of vendor until hammer is knocked down, 533. 
 auctioneer's clerk, agent of buyer, when, 535, 536, 539. 
 
 he may make the entry of sale, 536, 537, 575. 
 
 he has not the same authority as the auctioneer to sign the 
 entry, 537. 
 
 auctioneer must sign the entry in his book, 561. 
 
 signature of clerk sufficient, when, 537, n. 4. 
 
 case of Price v. Durin, involving the question where clerk 
 of auctioneer made the entries, held sufficient, 538. 
 
 name of purchaser to be called out by auctioneer's clerk, 537. 
 agent contemplated by the statute, who is, 535. 
 a clerk of the vendor may make the entry and bind vendee, 535. 
 but the owner of property, himself the auctioneer, cannot, 534. 
 memorandum of auctioneer, 18, 528. 
 
 must be complete as to the particulars of the sale, 18. 
 
 he must sign the entry, 523. 
 
 entry must refer to the terms, 428. 
 
 price, entry must show the, 531. 
 
 it must show the seller's and buyer's names, 523, 524, 526, 5S8, 543. 
 
526 SALES. 
 
 AUCTION AND AUCTIONEERS — continued. 
 
 sale-book of auctioneer where entries made, 536. 
 when is the entry to be made, 529. 
 memorandum must be made in his sale-book, 526. 
 example of a defective memorandum, 526, 526, n. 2, 545. 
 insufficient, when, 528, 535. 
 auction sales must be made in sedulous compliance with the 
 
 statute, 527, 570. 
 must show on whose account sale is made, 528, 543. 
 memorandum must be as comprehensive as in other sales, 528. 
 certain omissions may be cured, 545. 
 memorandum may be made in pencil, 529. 
 signature of the auctioneer, 522, n. 1. 
 
 entry must be made immediately on completion of the sale, 529, 
 
 581. 
 " during the day," insufficient, 528. 
 "one hour after the sale." insufficient, 528. 
 must not be left to memory, 531. 
 as to point of time in making the memorandum, 528. 
 " at the time," entry must be made, 530, 532, 575, 581. 
 Shaw, C. J., opinion of, as to signing " on the spot," 575, 576. 
 reason of the requirement, 530, 575, 581. 
 
 statute prescribes how the auctioneer is to bind the parties, 
 
 530. 
 case of Gill v. Bicknell as to auction sales and entry, 575. 
 auctioneer a person "lawfully authorized" to sign the 
 memorandum, 534, 536, 537. 
 a description of seller necessary, 543. 
 " do," or " ditto," not a sufficient description, 544. 
 statute is not satisfied as to name of purchaser, where the auc- 
 tioneer wrote " do " under a name, 544. 
 agent's name entered will satisfy the statute, 526. 
 a defective memorandum may be cured by subsequent writings 
 
 of the seller, 545. 
 memorandum sufficient, where auctioneer signs in his own 
 
 name, 547. 
 contract not complete until memorandum signed, 572. 
 the bid authorizes the auctioneer to write down the name, 550, 
 
 n. 1. 
 highest bidder not bound until memorandum subscribed, 581. 
 conditions, auctioneer must enter the conditions of the sale 
 in his sale-book, 552. 
 if he violates the conditions in the sale he becomes per- 
 sonally liable, 562. 
 liabilities of the auctioneer, 527, 547, 548, 562. 
 liable for gross negligence, 527. 
 
INDEX. 527 
 
 AUCTION AND AUCTIONEERS — continued. 
 
 for omission to comply with the statute, 537. 
 
 personally liable, when, 547, 548. 
 
 contract signed by auctioneer individually binds him, 547. 
 
 if auctioneer omits to write down the name of a bidder and 
 
 the article is sold at a less price, he is liable, 548. 
 example, case of Townsend v. Van Tassel, 548. 
 auctioneer liable to real owner of stolen goods sold at auction, 
 563. 
 liable when property is sold "without reserve," and condi- 
 tions violated, 563. 
 same rule applies as to " positive sales," 563. 
 not liable for not selling certain goods advertised, 565. 
 case of Harris v. Nickerson, as to auctioneer's liability, 565. 
 action for loss of time and expense in attending an auction 
 where goods advertised to be sold are not sold will not lie, 
 565. 
 Blackburn, J., opinion of on that subject, 565. 
 auctioneer not bound to give notice of withdrawal of goods, 
 5C5. 
 auctioneer may maintain action, when, 521, 539. 
 
 agency, when a party acts for himself at an auction, 
 
 533. 
 agent will be regarded as owner at auction sale, when, 
 
 543. 
 when he holds himself out as owner, 543 
 rule requiring agent to sign name of principal, 547. 
 caption, in auctioneer's sale-book, effect of, 538. 
 not necessary to be rewritten by the auctioneer at each sale 
 made, 538. 
 sufficient compliance with the statute where auction 
 continues several days, what is, 538. 
 bidder at an auction. 
 
 who is the highest bidder, 567. 
 
 an offer, a bid at an auction is, 567, 570, 573. 
 
 " affirmative answer,'' a bid is, 575. 
 
 the bidder regarded as purchaser, when, 569, 573. 
 
 a contract at an auction is consummated when the auctioneer 
 
 has made the entry in his sale-book, 569, 573, 575, 578, 581. 
 with the bidder's consent, if in accordance with the statute, 
 
 567, 573, 578. 
 entry must be made immediately, 581. 
 auctioneer may take a higher bid after the hammer has been 
 
 knocked down, 581. 
 auctioneer cannot take a higher bid after, hammer falls, when, 
 
528 SALES. 
 
 AUCTION AND AUCTIONEEES — continued. 
 
 acceptance of an offer signified by the knocking down of the 
 
 hammer, 567, 570. 
 "your offer is accepted," is signified by the hammer being 
 
 knocked down, 569, 570. 
 bidder's contract, Blackburn, J., opinion of, 567. 
 the bidder makes the contract and authorizes the auctioneer to 
 
 sign for him, 567, 569. 
 knocking down the hammer signifies consent to the sale, 568. 
 auctioneer accepts a bid as agent of the vendor, 567, 577. 
 words insufficient to make a valid contract, 579. 
 auctioneer's memorandum constitutes the contract, 576. 
 mutuality of parties necessary to constitute a valid sale, 567, 
 
 572. 
 it must co-exist at the same moment of time, 574. 
 when is the bidder bound, 570. 
 retraction of a bid, 567, 572. 
 
 when may the bidder retract his bid, 568, 570, 573, 577. 
 
 may the bidder retract his bid after the fall of the hammer, 
 
 570. 
 acceptance, when, at sales by auction, 572. 
 withdrawal of an offer before acceptance, what, 572. 
 an agent's authority may be countermanded at any time before 
 
 the contract is made, 573. 
 notwithstanding the agent has entered into a verbal agreement 
 
 his authority may be countermanded, 573. 
 same principles attach to auction sales, 573. 
 principal not bound if agent signs a contract against his au- 
 thority. 573, n. 3. 
 a proposal may be withdrawn before it has become enforceable 
 
 by law, 574. 
 under the common law an offer and acceptance of it is binding, 
 
 not so under the statute, 574. 
 sale at auction not complete until when, 574. 
 bidder not bound, when, 567, 570. 
 
 bidder authorizes auctioneer to sign for him, when, 569. 
 oaption ; when name of buyer written under improper caption, not 
 
 bound, 575. 
 sale-book of auctioneer, 569. 
 signature of auctioneer necessary, 569. 
 lawfully authorized to sign, 570. 
 auctioneer cannot sign against purchaser's objection, and reasons 
 
 why, 570. 
 conditions against retracting bid not enforceable, 570, n. 2. 
 if principal refuse to sign, auctioneer has no right to, 570. 
 authority of auctioneer to sign must exist at the time of sale, 570. 
 
INDEX. 529 
 
 AUCTION AND AUCTIONEERS — continued. 
 
 after bidder retracts his bid auctioneer cannot sign for him, 570. 
 retraction of a bid, when, 572. 
 
 can bidder revoke his bid after hammer falls, 571, 572. 
 test, whether the knocking down of the hammer or the making 
 and signing of the memorandum constitutes the contract, 570, 
 571. 
 before necessary entry is made there is no binding contract, 572, 
 
 577. 
 if agent signs after refusal of principal to take the goods, principal 
 not bound, 573, n. 3. 
 case of-Ecroyd v. Davis, as to retraction of a bid, 577. 
 auctioneer signing name of bidder against his consent, con- 
 tract not binding, 577. 
 implied authority of auctioneer to sign for purchaser is revo- 
 cable at any time before signing, 577, 581. 
 act of auctioneer's signing, not the knocking down of the ham- 
 mer, binds the purchaser, 579. 
 purchaser bound when auctioneer has made proper entry, 578. 
 "time for repentance " remains, and a sale is not perfect until 
 the auctioneer has written the name of the purchaser in his 
 sale-book in compliance with the statute, 578, 581. 
 case of Pike v. Balch, as to when a sale by auction is complete, 
 
 578, 579. 
 bidder may retract his bid before memorandum signed, 581. 
 bidder not bound if entry is not immediately made, 581. 
 bidder's name, taken down before the knocking down of the hammer, 
 
 does not bind him unless he adopts it, 580. 
 ratification of acts of auctioneer necessary, when, 580. 
 mistake in regard to price will relieve purchaser, 579. 
 
 AUTHORSHIP OF THE STATUTE OF FRAUDS. 
 
 Sir Leoline Jenkins said to have prepared the statute, 5, 7, 8. 
 he prepared sections as to wills, 7. 
 Sir Matthew Hale drew the statute, 5. 
 Lord Nottingham assisted in its preparation, 8. 
 he did not originate the statute, 8. 
 sections as to trusts and devises written by him, 8. 
 Lord Guilford prepared certain sections of the statute, 7. 
 he assfcted in having the statute passed, 7. 
 conflicting opinions as to its authorship, 6. 
 
 authors of the statute said not to have a distinct conception of 
 written and verbal contract, 10. 
 
 BACON, LORD. 
 
 opinion of, as to office of a judge, 21, n. 1. 
 34 
 
530 SALES. 
 
 BAILEE. 
 
 vendor may retain goods as bailee for the vendee, 262. 
 effect of vendor holding goods of vendee as bailee, 262. 
 when the purchaser is the bailee, 300. 
 
 BAGALLAY, J. 
 
 opinionof, upon tne subject of acceptance under the statute, 321. 
 
 BARGAIN. 
 
 meaning of, 26. 
 
 " bargain " does not require as strict a construction as word " agree- 
 ment " in the fourth section, 26. 
 if price is not agreed upon in a bargain it may be shown by 
 parol proof, 222. 
 
 BAYLEY, J. 
 
 opinion of as to character and effect of contract to raise potatoes, 
 169. 
 
 BEARDSLEY, J. 
 
 opinion of, upon the proper distinction between personalty and 
 realty in the sale of trees, 192. 
 
 BELLOWS, J. 
 
 opinion of, upon contracts affected by the statute of frauds, 168. 
 as to contracts where labor and skill are to be bestowed on a manu- 
 facture, 40, 168. 
 
 BIDLE, J. 
 
 opinion of, as to whether standing trees are personalty, 194. 
 
 BILL OF LADING. 
 
 where a bill of lading is received by the vendee, acceptance in- 
 ferred, 278. 
 where the same is retained, 277. 
 
 BLACKBURN, J. 
 
 opinion of, as to the meaning of acceptance, 323. 
 
 as to crops and chattels being affected by the statute, 154. 
 
 as to the note or memorandum and the validity of contracts, 
 
 399, 400. 
 on the contract of a bidder at an auction sale, 567. 
 
 BLATCHFORD, J. 
 
 opinion of, upon a contract by bought and sold notes, 506. 
 
 BLODGETT, J. ' 
 
 opinion of, on acceptance under the statute of frauds, 271. 
 
 BOISE, J. 
 
 opinion of, as to delivery of goods under the statute, 287. 
 
INDEX. 531 
 
 BOUGHT AND SOLD NOTES. 
 
 use of bought and sold notes in business, 503. 
 no pai-ticular form of notes necessary, 503. 
 different kinds of, 503. 
 deduction from the decisions, 514. 
 
 bought and sold notes must contain the terms of the contract, 
 
 503. 
 example of a valid sale-note, 509. 
 they must correspond in terms, 503, 504, 508. 
 example of insufficient sale-note, 510. 
 they should correspond with the broker's entry in his book, 
 
 503, 514. 
 of the memorandum of the broker, 496, 498, 503. 
 copies of the contract muJt be sent to each party, 496, 498, 504. 
 evidence of the contract, 496. 
 
 where a bought-note is delivered, the purchaser is bound, 499. 
 notice of execution of broker's note, 499. 
 when bought and sold notes are to be made, 504. 
 case of a valid memorandum in, 498. 
 what a sufficient compliance with the statute, 504. 
 Ellenborough, Lord, on bought and sold notes, 504. 
 bought and sold notes, a copy of the original entry of the 
 
 broker, 504. 
 is the original entry the contract, 504. 
 
 Denman, Lord, on contracts by bought and sold notes, 504. 
 contract proved by producing the bought-note, 504. 
 evidence of the contract, what is, 504, 514. 
 
 if no entry is signed by the broker, but perfect 
 bought and sold notes are delivered, the contract 
 is binding, 503, n. 4, 513. 
 if no entry be signed by the broker, and the bought 
 and sold notes are different, there is no contract, 
 505, 508, 514 . 
 if the notes differ as to the kind of goods, neither 
 
 party bound, 505, 508. 
 no proof of assent of the parties in contracts by 
 
 bought and sold notes, when, 505. 
 what diversity sufficient to invalidate the contract, 
 
 508. 
 if the meaning is the same, a difference in language 
 of the bought and sold notes will not affect the 
 validity of the contract, 505, n. 1. 
 case of Butler v. Thomson, on the general subject, 506. 
 Blatchford, J., opinion of, upon a contract by bought and 
 
 sold notes, 506. 
 Hunt, J., opinion of, as to validity of such a contract, 507. 
 
532 SALES. 
 
 BOUGHT AND SOLD NOTES - continued. 
 
 mutuality must exist in such contracts, 507. 
 no purchaser without a sale, and no sale without a pur- 
 chaser, 507. 
 when the broker is special agent for one party only, 504. 
 price must be mentioned in bought and sold notes, 507. 
 terms must be clearly stated, 503, 504. 
 meaning of must be unequivocal, 505, 505, n. 1. 
 of the contract of sale, 507. 
 bought-note is delivered to the buyer, 507, 508. 
 the sold-note is delivered to the seller, 507, 508. 
 each note represents what the broker has done, 508. 
 either note sufficient if there is no variance between them, 514. 
 what diversity between the notes will avoid the contract, 508. 
 when vendee signs and broker delivers note, 503. 
 case of Sive wright v. Archibald, involving questions arising un- 
 der such contracts, 508. 
 where perfect notes are delivei'ed but the broker has omitted to 
 sign the entry in his book, effect of, 503, n. 4, 513. 
 strict rule as to such contracts relieved, when, 503. 
 contract valid if signed by vendee and delivered by broker 
 to vendor, although different from one delivered to 
 vendee, 503. 
 case of Greeley-Burnham Grocer Co. v. Capen, law of 
 
 contracts by bought and sold notes discussed, 509. 
 where the bought-note was different from the sold-note, 
 
 court divided, 508. 
 Thompson, J., opinion of, as to the law of bought and sold 
 
 notes, 509. 
 agency of broker sufficiently proved, when, 509. 
 sale-note, when insufficient ; example and law of, 510. 
 when the quantity of goods is not mentioned, 510. 
 when no bought-note was signed by the broker, 510. 
 in case of a material alteration of sale-note, 513, n. 1. 
 
 bought and sold notes, deductions from the decisions, 514. 
 does the broker's entry constitute the contract, 504, 514. 
 bought and sold notes not considered the contract, 514. 
 statute satisfied, when, 514. 
 
 either note sufficient if there is no variance between them, 
 514. 
 one note being put in evidence, the other may be introduced, 
 
 514. 
 jury to pass upon certain questions in relation to sale-notes, 
 
 514. 
 rule as to correspondence governs in such contracts, 514. 
 memorandum by broker, when to be made, 511, 513. 
 
INDEX. 533 
 
 BOUGHT AND SOLD NOTES — continued. 
 
 when sale-note calls for more goods than vendor had on hand at the 
 
 time, 512. 
 case of Cole v. Swanton, on the subject of delivery, 512. 
 delivery not sufficient to take contract out of the statute, when, 
 511. 
 where part of the goods are delivered under a sale-note, 512. 
 when delivery is contemplated by the parties but not stated, 512. 
 within a reasonable time, 509. 
 readiness to perform necessary, 512. 
 
 where party is unable to perform his contract, he cannot 
 complain if the other party fails, 512. 
 delivery of sale-note, a question for the jury, 513. 
 
 parol evidence rnay connect an instrument with the subject- 
 matter of the contract, 511. 
 not admissible to explain sale-note, 509. 
 
 Daly, C. J., opinion of, as to admissibility of parol proof to con- 
 nect an instrument with the subject-matter, 511. 
 contracts by bought and sold notes are governed by the same 
 rules of construction as contracts by correspondence, 514. 
 . acceptance need not take place at the time of the contract, 510, 
 511. 
 revocation of broker's authority, when it may take place, 513, 
 n. 1. 
 
 BOWEN, L. J. 
 
 opinion of, as to what is an acceptance under the statute of frauds, 
 321. 
 BRAMWELL, L. J. 
 
 opinion of, as to acceptance, and right of objection to goods, 319. 
 
 BRETT, M. R. 
 
 opinion of, as to the legal effect of the vendee receiving and ex- 
 amining goods sold by sample, 320. 
 
 BUSKIRK, J. 
 
 opinion of, on pleading the statute of frauds, 591 
 
 CALIFORNIA. 
 
 contracts for the sale of shares of stock within the meaning of the 
 
 statute of frauds, 146, 148. 
 sale of "mining stock" within, 140, n. 2. 
 uniformity of the decisions, 148. 
 are shares of stock, "goods," 140, 145. 
 statute of California as to contracts by telegraph, 453. 
 contracts for the sale of growing crops, fructus industriales, valid 
 
 without writing, 162. 
 contracts for the sale of growing crops, 166. 
 
534: SALES. 
 
 CAMPBELL, J. 
 
 opinion of, on the subject of price under the statute of frauds, 277. 
 
 CAMPBELL, LORD. 
 
 opinion of, as to the kinds of acceptance under the statute, 317. 
 
 CARRIERS. 
 
 general duty of a carrier, 325, 339, 344. 
 
 common carrier an agent to carry and deliver goods, 340, 343, 347. 
 
 common law rule as to delivery to carriers, 341, 343. 
 
 carrier selected by the vendee, 98, 339, 344, 352. 
 
 when designated in the contract, 339. 
 
 when the buyei - 's agent, 339, 353. 
 
 doctrine of the early cases, 344. 
 
 when delivery to carrier named by buyer does not amount to ac- 
 ceptance, 345, n. 1. 
 
 carrier specially designated, rule as to, 98, 346. 
 
 delivery to common carrier will transfer title, when, 346. 
 
 statute satisfied in delivery of goods to carrier, when, 317, 339, 
 352. 
 carrier selected by the vendor, 344, 353. 
 
 example of carrier receiving goods for transportation, 339, 351, 
 355, 358. 
 
 carrier of seller cannot accept for buyer, 278, 354. 
 
 Van Hoesen, J., opinion of upon delivery to carrier of vendor's 
 selection, 354. 
 
 vendee's option to receive goods sent by carrier selected by, 
 vendor, when, 343. 
 
 delivery of goods to carrier selected by vendor, not an accept- 
 ance by vendee, when, 350. 
 
 receipt of part of the goods not acceptance of rest, 281. 
 after acceptance, delivery of goods to a carrier, 339. 
 
 statute satisfied in such case, 339. 
 
 delivery by consignor to carrier, when delivery to consignee, 
 348. 
 
 when is acceptance by vendee necessary, where goods are 
 shipped, 351. 
 
 Perkins, J., opinion of in Keiwert v. Meyer, upon delivery of 
 goods to carrier, 349. 
 
 after selection of goods by vendee, a delivery to common carrier 
 sufficient, 354, 357. 
 after acceptance, a delivery of goods to a designated carrier is a 
 valid delivery, 357, 358. 
 
 import of the language of the statute as to acceptance, 341, 343. 
 
 acceptance by purchaser necessary, when, 345. 
 
 it depends upon the agreement whether goods shipped by a 
 carrier will bind the vendee or vendor, 346. 
 
INDEX. 535 
 
 CARRIERS — continued. 
 
 if property has passed to vendee he may sue in case of loss, 349. 
 consignee may sue, when, 348. 
 consignor must sue, when, 349. 
 
 agent duly authorized may receive and accept, 340, 355, 358. 
 agent may employ a carrier for vendee, 353. 
 carrier may have authoi-ity to accept, 341. 
 before acceptance, rule in delivery to carrier, 343, 345. 
 
 case of Rodgers v. Phillips, involving question of goods shipped 
 
 under a verbal order, mode of shipment not mentioned, 343. 
 bill of lading sent and immediately returned where there was 
 
 no acceptance, 343. 
 Daniels, J., opinion of, on delivery of goods to a carrier under a 
 
 verbal contract, 343. 
 bill of lading delivered with mutual assent that title is to pass is 
 
 sufficient to satisfy the statute, 343, n. 1. 
 valid or invalid contract, effect of shipment of goods under, 343. 
 deductions of law upon the subject of, 343. 
 right to object to the goods, 345. 
 common carrier cannot accept, 347. 
 
 Gilfillan, C. J., opinion of, as to delivery before acceptance, 350. 
 'receipt before acceptance not sufficient, 357. 
 vendee's act may be sufficient to show acceptance, 340. 
 when delivery of goods to carrier will not amount to acceptance, 
 259, 339. 
 expressman cannot accept, when, 249, 268. 
 warehouseman cannot accept, when, 249. 
 goods delivered to the usual carrier, effect of, 268, n. 3. 
 
 ■ under a valid contract, delivery of goods as directed by 
 vendee, is sufficient, 292. 
 valid contract, delivery to common carrier under, 344, 353. 
 will transfer title and render vendee liable, 346, 353. 
 case of Magruder v. Gage, 346. 
 where order for goods is in writing, 346. 
 acts necessary to transfer title to unspecified goods, 346. 
 delivery to carrier susceptible of proof, 347. 
 carrier bailee of whom, 353. 
 delivery of goods to a carrier according to the terms of a valid 
 
 contract will pass title, 357. 
 void contract, shipment of goods by a carrier selected by the vendor 
 
 under, in case of loss vendor liable, 344, 345, 349. 
 sometimes depends upon the contract, 346, 357. 
 vendor has knowledge of, an invalid contract, 349. 
 if vendor then ships goods, he takes the risk of loss, 342, 349, 357. 
 verbal order for goods is void until acceptance, 342, 350. 
 where goods are shipped, acceptance necessary, when, 351. 
 
536 SALES. 
 
 CARRIERS — continued. 
 
 receiving is a formal act, 358. 
 
 acceptance implies exercise of discretion, 358. 
 
 Gray, J., opinion of, as to proof of acceptance where goods are 
 
 shipped under a void contract, 340, 341. 
 Rindskopf v. De Ruyter, case of, as to carrier receiving goods, 
 
 and acceptance by vendee, 351. , 
 place of contract governs, 351. 
 
 case of Gray v. Cary, involving question of goods selected, -and 
 destroyed before delivery by carrier of vendor's selection, 354, 
 355. 
 " delivered," word used in the Iowa statute, 347. 
 
 rule as to delivery of goods under a verbal contract, 347. 
 Love, D. J., opinion of, as to the law governing delivery under 
 the statute, 347. 
 " delivered," " received," " accepted," not equivalent terms, 347. 
 when is a carrier quoad hoc the buyer's agent, 347. 
 word " accept " not used in the statute of Iowa, 347. 
 proof, delivery to carrier susceptible of, 347. 
 rule as to carriers in Wisconsin, 352. 
 goods sent by designated carrier, sufficient, 352. 
 where acceptance necessary, 351. 
 
 jury to pass upon acceptance, when goods sent by carrier, 
 339. 
 delivery of goods at a station, effect of, 340, n. 2, 353. 
 at a place designated under a' written contract, title 
 
 passes, 342. 
 an acceptance under the statute, when, 343. 
 warehouseman, delivery of goods to a, 353. 
 vendee making purchases by sample of agent of vendor, not 
 obligated to receive goods if not according to order, 
 355. 
 so if purchases are so made by vendee, 355. 
 when goods sent are different from sample, 355. 
 acceptance and receipt need not be simultaneous acts, 
 _ 357. 
 
 goods received to test them, not an acceptance, 357. 
 authorized agent may accept, 341. 
 liability of carrier, 355, 356. 
 
 carrier liable for loss when goods are delivered for immediate 
 transportation, 356. 
 not liable as a warehouseman, 356. 
 not liable for loss when goods are delivered awaiting further 
 
 orders for transportation, 356. 
 Earl, C, opinion of, on acceptance of carrier and his liabil- 
 ity, 356. 
 
INDEX. 537 
 
 CHANCELLORS, 
 in early times, 19. 
 
 legislature has supplanted chancellors, 19. 
 dispensed justice according to conscience, 19. 
 ignored acts of parliament, 19. 
 they interpreted contracts, 19. 
 
 CHARLES THE SECOND, 
 date of his reign, 2, n. 1. 
 assented to the statute of frauds. 9. 
 
 CHATTEL. 
 
 definition of; contract for the sale of, 73. 
 
 (See Goods, Wakes and Merchandise; Timber and Trees Grow- 
 ing.) 
 
 COKE, LORD. 
 
 opinion of, on construction of statutes, 27. 
 
 COLE, C. J. 
 
 opinion of, upon acceptance under the statute of frauds, 290. 
 on the subject of payment, 376. 
 
 words " at the time," used in the statute, construed, 380. 
 as to contracts for the sale of growing grass, 172. 
 as to the validity of contracts for the sale of standing trees, 181. 
 
 COLERIDGE, C. J. 
 
 opinion of, as to contracts of sale of trees to be immediately re- 
 moved, 191. 
 as to construction of contracts for trees and timber, 95. 
 
 COMMON LAW. 
 what it is, 23. 
 
 common law came from the legislature, 23. 
 illustration of, 16. 
 parol contract for a chattel, valid under, 130. 
 
 CONDITIONS. 
 
 in auction sales, 18, 549. 
 
 under an executory contract, 274. 
 
 what conditions in an auction sale will violate the statute, 549. 
 
 special conditions in auction sales, 552. 
 
 " without reserve," condition in sale at auction, 562. 
 
 " positive sale," in auction sale, 562. 
 
 (See Auction and Auctioneers ; Conditional Sales of Goods.) 
 
 CONDITIONAL SALES OF GOODS, 
 meaning of, 333. 
 validity of, 333. 
 
538' SALES. 
 
 CONDITIONAL SALES OF GOODS — continued, 
 mode of proof, statute of frauds affects, 333. 
 Sir Cresswell Cresswell on conditional sales, 334. 
 the law accurately stated, 334. 
 Cooley, C. J. , opinion of, on conditional sales, 334. 
 mutual assent necessary, 334. 
 valid, gold bullion sold before being weighed, 334 
 Colt, J., opinion of, on conditional sales, 335. 
 opinion of judges, 334, 335. 
 
 title to vest immediately, although something is to be done 
 in relation to the goods by the seller, when, 335. 
 Eedfield, J., opinion of, in contracts of sale where something 
 remains to be done to the goods before delivery, 336. 
 goods sold which are mixed with others, rule as to, 336. 
 sale of a horse on conditions, 337. 
 sale of a mare on condition that she should be with foal, 
 
 338. 
 where chattel is to be returned on certain condition, 338. 
 what is a distinct contract from another, 338. 
 instance of an entire contract, 338. 
 what sale on conditions, will be held one sale, and separate sales, 
 
 338. 
 when is the transaction in a sale complete, 338. 
 in a sale of a different thing, 338, n. 1. 
 
 (See Executory Conteacts ; Statute op Frauds ; Contracts 
 Within the Statute of Frauds; Contracts Without the 
 Statute.) 
 
 CONNECTICUT. 
 
 statute of frauds of Connecticut reads " personal property," 145, 
 
 n. 1. 
 shares of stock within the statute, 145. 
 
 CONSIDERATION. 
 
 under the common law, 16. 
 
 illustration from Sheppard's Touchstone, 16. 
 
 consideration in the memorandum, 242. 
 
 Lott, J., opinion of, as to consideration in a memorandum, 440. 
 
 consideration not destroyed because the party who does not sign the 
 
 memorandum is not liable thereon, 440. 
 need not be expressed in the memorandum, 403, 447. 
 consideration paid and goods remain in the hands of vendor, effect 
 of, 264. 
 consideration necessary to support an agreement, 168, 440. 
 when is the agreement a sufficient consideration, 168. 
 (See Price or Amount.) 
 
INDEX. 539 
 
 CONTRACTS. 
 
 meaning of, for the sale of goods, 26 and n. 1. 
 
 common law rule as to, 4. 
 
 authors of statute of frauds did not have a clear conception of, 10. 
 
 executory contracts under the common law, 13. 
 
 under the statute, 15, 28. 
 
 construed according to intent of parties, 19, 24, 26. 
 
 people free to make their own contracts, 19. 
 
 construction, modern tendency of, 19, 20. 
 
 once deemed of small importance, 20. 
 
 form and ceremony as to, in early times, 20. 
 
 void, where none of the requirements of statute are complied with, 
 
 21, 22. 
 requisites of, 26. 
 
 nice distinctions as to whether within the statute, disregarded, 22. 
 intention of parties sought for, in, 26, 27. 
 instance from the Bible of a money contract, 26. 
 money always been used in contracts, 26. 
 different shades of contracts, 33. 
 
 (See Contracts Within the Statute; Conteacts Without the 
 Statute ; Contracts, English Rule op Construction.) 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS, 
 "no contract for the sale of," words construed, 39, 42. 
 what is a contract of sale, 37, 63, 78, 90. 
 various shades of contracts, 31, 33. 
 
 what contracts are within the statute, 38, 44. 
 where goods are capable of immediate delivery, 44, 65. 
 where mutuality is wanting, 71. 
 
 a test as to whether a contract is within the statute, 88, 90. 
 contract, when entirely executory, 28, 40. 
 where labor and skill to be expended, 28. 
 where goods are in existence, 29. 
 rule as to goods in solido, 29, 39, 44. 
 where something is to be done upon the goods sold, 46, 79. 
 a distinction drawn, 28, 44. 
 
 where goods are in substantial existence, 47, 48, 63. 
 rule, existence and non-existence, 39, 48. 
 single distinction suggested desirable, 44. 
 contract where certain work is to be done by the vendor on goods 
 
 before delivery, 31, 46, 49, 50. 
 does not take contract out of the statute, when, 46. 
 a contract of sale, when, 31. 
 perplexing distinctions precluded, 49. 
 rule advanced and commended in a noted case cannot be 
 
 adopted, 49. 
 a too nice distinction, 83. 
 
540 SALES. 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS — continued. 
 " immediately answerable " the rule first advanced, 80. 
 criterion, cannot be established in certain cases, 40, 79. 
 where goods are to be delivered at a stated time, 82. 
 a decision at variance with recent cases, 82. 
 
 contract for a marketable commodity, if at the time agreed upon 
 for delivery, is within, 30, 88. 
 distinction, where labor is the essence of the contract, or the 
 
 materials found, 32, 69. 
 when in effect for goods to be delivered, 40. 
 no contract until the parties are ad idem as to the subject- 
 matter in existence, 42. 
 expense in procuring goods will not take contract out of the stat- 
 ute, 41. 
 a thing procured for the general market, within, 39, 66, 79. 
 a case in advance of others, 45. 
 
 contract to get out " spokes," is a sale, 37. 
 " potatoes,'' agreement to raise, in certain piece of land, at stated 
 
 price, rule as to, 40. 
 . sale of a pump or engine, is a chattel, 57. 
 sewing machines, contract to make, 41. 
 where price and quantity agreed upon, 40. 
 
 " flax straw,'' to be raised from certain quantity of flax seed, is a 
 sale, 63. 
 note for difference between contract price and market value, 
 
 void, when, 62. 
 where article made is unsuited to the market, 65. 
 where it is so suited, 65, 69. 
 "crop of cotton," to be raised, is within, 65. 
 " wheat," when not to be raised or manufactured, within, 46, 64. 
 where it is partly threshed and partly unthreshed, 76. 
 where it is simply to be cleaned, 64, 76. 
 a part already on hand, rule in such case, 46, 76. 
 " hams," sold while being smoked, within, 64, n. 4. 
 "furniture," contract for in substantial existence, 60. 
 where it has to be covered with goods selected by vendee, 60, 77. 
 in solido,. goods substantially within, 89. 
 
 "mixed contract," how the statute affects, 89. 
 what is not a mixed contract, 94. 
 "spinning frames," contract to make, 93. 
 old and new doctrine of construction of contracts, 76. 
 " flour " to be prepared for shipment, within, 86. 
 if, when carried out, the contract will result in a sale, statute ap- 
 plies, 88. 
 " artificial teeth," a contract for the sale of, a chattel, 88. 
 work of a sculptor, a sale of a chattel, 88. 
 
INDEX. 541 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS — continued. 
 Justice Blackburn's construction of contracts, 88. 
 as to "border cases," difficult to determine when the statute ap- 
 plies, 44. 
 no criterion available in border cases, 48. 
 goods, where labor to be bestowed, contract within, 66. 
 contract for goods ordinarily made by vendor, 67. 
 
 "malt," contract to make, and for that already made, where 
 part is received and paid for, and vendee refuses to take 
 more, void, 58. 
 "colt," sale of, to be gelded and delivered at future time, a 
 
 void contract, 68, 130. 
 bailee, where owner of a chattel is, 130. 
 " cotton gin,'' sale of, within, 69. 
 
 distinction as to what contracts within the statute, 69, 116. 
 "oak pins," contract for, to be cut and delivered, 69. 
 another example, 40, 69. 
 
 " coal," contract for, when void, cost of transportation cannot 
 be recovered, 107. 
 " void," certain statutes declare contracts void, when, 107. 
 valid part of a contract may be enforced, when, 107, n. 1. 
 where contract is special in character, 106. 
 rule in Downs v. Ross, 104. 
 
 immaterial whether subject-matter of the contract is in existence or 
 not, 104. 
 "turnip seed,'' contract to sow and sever before being trans- 
 ferred, within, 118. 
 " broom corn," contract to raise on certain acres of land, 115. 
 contract for corn, ungathered, 87. 
 sale of crop of corn to be raised, void, 95. 
 where seed is not sown at the time of the contract, 95. 
 contract for an article, quantity and price agreed upon, though not 
 
 in existence, is a contract of sale, 40, 45, 46, 76. 
 the test to be applied in certain cases, 39, 93. 
 
 where part of goods are on hand, and in condition for delivery, 45, 
 46, 76. 
 what is a chattel, 88. 
 
 a picture painted by an artist, when a chattel, 88. 
 English doctrine as to art work, 88. 
 a painted picture, held to be goods, when, 88. 
 a different doctrine in this country, 67, 89. 
 criterion, whether materials supplied, or the work, the essence 
 of the contract, 89. 
 new English doctrine as to contracts of sale, 76. 
 rule in accordance with sound policy, 75. 
 
542 SALES. 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS — continued, 
 contract for goods whether on hand, or to be secured from a corre- 
 spondent, equally within, 70. 
 contract for goods under special order, what, 79. 
 where personal property is sold and purchaser refuses to take it, 
 seller may keep it and recover difference between contract and 
 market price, 126. 
 a contract where labor and skill to be blended, 116. 
 where a chattel has assumed the character bargained for, 93. 
 a test laid down by Pollock, C. B., 90. 
 other tests, 73. 
 
 Lord Tenterden's act established the true rule, 66, 76, 89. 
 work and labor necessary to prepare corn for delivery, contract still 
 
 within the statute, 116. 
 a sale under the English rule, 30, 34, 72, 73. 
 
 skill exceeding value of materials does n&t take contract out of 
 
 the statute, 72, 73. 
 if capable of sale at time agreed upon for delivery, 38, 72, 73. 
 a class of contracts considered, 79. 
 (See Contracts Without the Statute of Frauds.) 
 Massachusetts, rule of construction, and some other states. 
 as to contracts within the statute, rule of, 28, 34. 
 what contracts of sales are within the statute, 39. 
 goods to be manufactured are within, 35. 
 manufactured in the usual course of business, 33. 
 if the manufacturer regularly produces the subject of the 
 contract, it is a sale, 30, 32. 
 what sales are within the statute, 35. 
 not much uncertainty in the rule, 33. 
 statute applies to articles in existence, 33. 
 where personal elements enter into the contract, 33. 
 where work and labor are done in a particular manufact- 
 ure, 39. 
 rule in Massachusetts criticised, 33. 
 it brings the cases into good fellowship, 42. 
 but rests on no satisfactory principle, 32. 
 the rule distorts the legislative expression, 42. 
 order for a carriage of materials partly wrought, not a con- 
 tract of sale, 81. 
 contract to manufacture a carriage according to model, 
 which never would have been built but for the order, is 
 not within the statute, 39. 
 Maryland, rule of construction in. 
 
 construction of the statute of frauds, 116. 
 cases follow the English rule, 81, 116. 
 
INDEX. 543 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS — continued, 
 early case in the state as to executory contracts, 83. 
 case of corn to be gathered and delivered, S7. 
 case identical with Eichelberger v. McCauley, 87. 
 Nmo York, rule of construction of contracts. 
 rule as to what is a contract, 28, 39, 43. 
 a manufacture distinguished from a sale, 43. 
 contract to manufacture goods, not within the statute, 43. 
 
 subject-matter must be in substantial existence to constitute 
 
 a sale, 43. 
 manufacture of paper not a sale, 43. 
 
 contract for flour not yet ground, a manufacture and not a 
 sale, 43. 
 principle of the decisions, 51. 
 illustration of the rule, 45. 
 in New Jersey, a contract executory is within the statute, 37. 
 rule of construction of contracts in, 34. 
 
 a manufacture under special order, not within the statute, 37. 
 ' cases in Nevada follow the New York rule, 36. 
 New Mexico, question raised whether the statute of frauds is there 
 
 a part of the common law, 127. 
 Minnesota, case in, question whether the statute of frauds was pro- 
 ductive of good, 121. 
 (See Contracts Without the Statute of Frauds.) 
 English rule of construction. 
 
 influence of the English decisions, 42. 
 as to construction of contacts in England, 30, 34. 
 if a thing made or manufactured will "result in a sale, con- 
 tract within the statute, 72, 90. 
 it is immaterial whether the subject-matter is in existence or 
 not, 72. 
 deliverable at time of sale, 74. 
 rule where work and labor to be bestowed, 72. 
 contract not within the statute, when work is done on the goods 
 
 of another, 72. 
 where the contract is for work and labor, 95. 
 work and labor, contract for, where materials are furnished in 
 
 repairing an article, 72. 
 when otherwise, 77. 
 
 labor and mate rials found, not the test as to whether the 
 
 contract is within the statute, 73, 78, 90. 
 distinction drawn, 93. 
 if article made is not properly the subject of sale, it is for 
 
 work and labor, 73, 95. 
 skill exceeding value of materials, does not take contract out 
 of the statute, 73. 
 
5-k-i SALES. 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS — continued, 
 what constitutes a sale under the rule, 73, 78. 
 rule for determining, 78, 93. 
 sale of a work of art a chattel, 73. 
 where the circumstances were peculiar, 73. 
 statute of frauds in early cases was strictly construed, 74, 75. 
 later constructions of the statute have been liberal, 75-86. 
 where article is to be changed in form, 74. 
 seventeenth section adopted in many states, 74. 
 what is a manufacture, 79. 
 
 article produced in the regular course of business, what, 79. 
 statute applies where article is marketable, or made to suit the 
 
 wants of the buyer, 77. 
 decisions in Towers v. Osborne considered right, 77. 
 Lord Loughborough's opinion as to, 77. 
 rule, whether the work is for the seller or the buyer, 78. 
 class of contracts, 79. 
 goods in solido, but work to be done upon them, to put them in 
 
 condition to suit the buyer, 79. 
 to executory contracts, statute of frauds does not apply, 39, 80, 
 
 81, 83. 
 where contract is not immediately to be executed, 75, 80. ' 
 statute relates to actual sale of goods, 80. 
 delivery, special agreement as to, 80. 
 early English rule rejected, 80. 
 a noted case held to be wrong in principle, 80, 86. 
 chariot, contract to make and furnish, 80. 
 powerful judgment as to executory contracts not being within 
 
 the statute, 83. 
 apology for Lord Mansfield's decision, 83. 
 his decision discarded, 83. 
 English rule at the present time as to the application of the 
 
 statute to contracts, 83. 
 contract to be executed at a future day, 83. 
 rule established in Garbutt v. Watson, 75, 86. 
 the new English rule, 86. 
 
 statute applies to contracts not immediately to be consum- 
 mated, 75, 84. . 
 damages in case of non-delivery of goods, 84. 
 a subject of surprise that executory contracts were ever held to 
 
 be without the statute, 75. 
 English cases back on the foundation of reason, 46. 
 statute designed to remove uncertainty in contracts, 84. 
 circumstance of shipment of goods does not take contract out 
 
 of the statute, 84. 
 additional price to be paid for delivery does not, 85. 
 
INDEX. 515 
 
 CONTRACTS WITHIN THE STATUTE OF FRAUDS -continued. 
 
 contract within the statute though goods to be delivered at a 
 
 distance, 85, 94. 
 what contracts held to be within the statute, 86. 
 conflict of authority as to, 88, 94. 
 decisions construe the statute reasonably, 86. 
 "flour," contract of a miller for, 86. 
 " artificial teeth," contract for, 88. 
 contemplation of parties, sometimes governs as to cases falling 
 
 within the statute, 95. 
 English cases followed in certain states, 303. 
 
 CONTRACTS WITHOUT THE STATUTE OF FRAUDS, 
 contract for an article not of general sale, 88. 
 for an article not in esse, 77. 
 rule as to contract for, 66. 
 
 for an article not usually sold in the market, 96, 113. 
 for malt, made in the ordinary course of business, 58a. 
 example, contract for circus tents, 98. 
 where goods are shipped and bill of lading sent, 98. 
 for the work of an artist, 123, 124. 
 labor and skill principal ingredients, 122. 
 for goods having no marketable value, 124. 
 
 materials are no particular value in art work, 124 
 ancillary to the artist's skill, 122. 
 copies from photographs, what, 124. 
 contract for a portrait, what, 66, 123. 
 value of, not to be judged by earnings of the artist, 124. 
 contract for work of an artist, what, 77, 122. 
 contract for a bust of a private citizen, 88, n. 1. 
 part performance takes the case out of the statute, 126. 
 where a mechanic employed to do work and furnish materials, 122. 
 for work of an artisan, 38, 96. 
 
 where special skill of the workman is the inducement of the 
 
 contract, 39, 40. 
 where the skill and labor are contracted for, 40. 
 
 article made from materials selected by vendee,, 36. 
 contract for building a carriage, 39. 
 order for a coat, not within, 125. 
 where the buyer has had the personal property placed in his 
 
 possession, 113. 
 where chattels are delivered under a contract for work, 118. 
 work for part of profits in a sale of chattels, 114. 
 staves to be manfactured, 114. 
 broker's contract to buy and sell stocks, 133. 
 parol contract to pay for improvements on land, 114. 
 35 
 
546 SALES. 
 
 CONTRACTS WITHOUT THE STATUTE OF FRAUDS — continued, 
 parol agreement for distribution of a fence, 111. 
 agreement to furnish material for building houses, 121. 
 sale of corn in the field ungathered, to be delivered shucked, 
 116/ 
 agreement to share in the profits of a transaction, 114, 128. 
 sale of partnership interest, 119. 
 trusts in personalty, are also, 129. 
 special order, goods made upon, 79. 
 
 general rule of construction of such contracts, 30, 79, 96. 
 
 to paint a picture, 88. 
 
 bust of a private citizen, 88, n. 1. 
 
 work of a sculptor, 88, n. 1. 
 
 goods manufactured, under, 30, 33. 
 contract for lumber of special kind, 127. 
 4 vendor to be paid for special goods, 66. 
 
 materials, when principal consideration, 66. 
 manufacture under special order, contract without the stat- 
 ute, 34. 
 out of the routine of business, 36. 
 at a place selected by the defendant, 36. 
 theatre or opera tickets, sale of, 132. 
 does not affect interest in land, 132. 
 they are merely personal, 132. 
 
 purchaser of tickets for an opera may recover damages, when, 
 132. 
 contract between brokers to buy and sell stocks is not re- 
 quired to be in writing, 133. 
 
 COOLEY, C. J. 
 
 opinion of, as to acceptance under the statute of frauds, 279. 
 
 on the subject of license in vendee to enter upon vendor's land 
 to do certain acts, 206. 
 
 CROCKER, J. 
 
 opinion of, as to contracts for the sale of growing crops, 164. 
 
 •DALY, C. J. 
 
 opinion of, as to admissibility of parol proof to connect an instru- 
 ment with the subject-matter of the contract, 511. 
 as to sale and manufacture, 52. 
 
 DAMAGES. 
 
 for non-delivery of goods, 108, 164, 294. 
 
 damages recoverable where part of goods are delivered and a 
 refusal to deliver remainder, 294. 
 amount of damages between contract price and market value, 101. 
 
INDEX. 547 
 
 DANIELS, J. 
 
 opinion of, as to delivery and acceptance of goods by carrier, 343. 
 on a contract for the sale of timber, 197. 
 
 DELIVERY. 
 
 delivery of goods when the contract is void requires an acceptance 
 
 to pass title, 312. 
 delivery, followed by inspection of goods and rejection, does not 
 
 make out an acceptance, 312. 
 order delivered does not constitute an acceptance, 312. 
 delivery of goods at a railway station, effect of, 324. 
 delivery on board a vessel, as carrier, whether an acceptance by 
 
 vendee, 449. 
 keys delivered, when a symbolical delivery, 392. 
 goods delivered to a carrier designated by the purchaser constitutes 
 
 an acceptance and receipt sufficient to satisfy the statute, 449. 
 (See Acceptance; Receipt and Deliveey.) 
 
 DEMURRER. 
 
 demurrer as to shares of stock being within the statute, 140, n. 3. 
 
 declaration demurrable, when, 589, 595; 
 
 when price not averred, 218. 
 
 statute of frauds not available by demurrer, 584, 595. 
 
 (See Pleading the Statute of Frauds.) 
 
 DENMAN, LORD. 
 
 opinion of, upon contracts by bought and sold notes, 504. 
 
 DEPTTE, J. ^ 
 
 opinion of, as to payment under the statute of frauds, 384. 
 
 DEVENS, J. 
 
 opinion of, as to the validity of a sale of goods by sample, 310. 
 
 DIXON, J. 
 
 opinion of, on pleading the statute of frauds, 595. 
 
 DWIGHT, C. 
 
 opinion of, upon delivery and acceptance under the statute of frauds, 
 269. 
 
 DWIGHT, PROFESSOR. 
 
 opinion of, as to place of contract under the statute of frauds, 604. 
 construction of the statute as to contracts falling within it, 400. 
 
 EAKIN, J. 
 
 opinion of, on symbolical delivery, 331. 
 
 EARL, C. 
 
 opinion of, on acceptance by carrier, 355. 
 on payment "at the time," 370. 
 
548 SALES. 
 
 EARNEST AND PART PAYMENT. 
 
 common law principle of earnest, 16, 365. 
 early history of giving earnest, 359, 363. 
 meaning of earnest, 363. 
 the custom and effect of giving earnest, 359. 
 " hand-sale," what it was, 359. 
 
 earnest under the Roman law, 359. 
 
 of two kinds, 359. 
 
 of what consisted, 359. 
 
 symbol of bargain concluded, 359. 
 
 formerly no part of price, 359. 
 
 suited the unlettered ages, 360. 
 
 contract nuda pacta, without earnest, 141. 
 statute of frauds, "earnest" omitted in many of them, 360. 
 early cases where earnest was given, 361. 
 earnest vests the property in thing sold, 16, 62, 361. 
 "earnest to bind the bargain," words of some statutes, 362, 382. 
 is independent of the bargain, 362. 
 
 earnest paid on a contract, for a crop to be raised, 95, 163, 165. 
 earnest tendered is not sufficient, 362. 
 part payment in contracts for pelts, 252. 
 earnest equivalent to part payment, 169, 363, 369. 
 earnest in sale of shares of stock, 140, 149, 150. 
 must be given at the time of the bargain, 363. 
 effect of, 364. 
 
 " part payment ," or "part of purchase money," words of some 
 statutes, 362, 363, 396. 
 
 meaning of part payment, 293, 383. 
 
 must be paid " at the time," 363. 
 
 agent may receive payment for his principal, 389. 
 
 example of, under the statute, 365. 
 
 words "at the time," strictly construed, 366. 
 
 where contract is restated at the time of payment, 366. 
 
 subsequent payment insufficient, when, 368. 
 
 part payment on a sale of crop of growing hops, 159. 
 
 a promissory note not considered as earnest, 390, 391, 395. 
 
 a "check" may be payment, 371. 
 
 earnest or part payment must be money's worth, 395. 
 
 a check is considered " money's worth," when, 371. 
 
 intention of the statute as to payment, 245, 371. 
 
 reasonable meaning of the statute as to, 378, 379. 
 
 before payment neither party bound, 374. 
 
 money, what deemed equivalent to, 375. 
 
 parties may treat a thing of value as money, 375. 
 
 may agree as to what shall be part payment, 383. 
 
 money deposited as a forfeiture not payment, 381. 
 
INDEX. 549 
 
 EARNEST AND PART PAYMENT — continued. 
 
 earnest deposited in such case equivalent to payment, 381. 
 
 the statute means " pay down," 383. 
 
 " goods " may be taken as part payment, 383, 384. 
 
 insufficient to satisfy the statute, when, 387. 
 
 payment vests title in vendee, 264, 304. 
 
 though property still in hands of vendor, 304. 
 
 question of liability where part payment is made, 303. 
 
 example from Blackstone, £61. 
 
 payment in an executory contract, 99. 
 account, to apply as part purchase, 383. 
 where mutual debts exist one may offset the other, 386. 
 what deemed sufficient, 383. 
 example of goods sold in payment of a debt, 384. 
 case of Mathiessen v. McMahon, 384. 
 a receipt or actual credit must be given to constitute a payment of 
 
 a debt due from the seller, 384. 
 statute not satisfied unless, 384. 
 an early case on the subject, 384, n. 4. 
 chattel delivered in part payment, 384, n. 4. 
 Depue, J., opinion of, as to payment, 384. 
 part performance necessary, 384. 
 surrender of the evidence of the debt, 384. 
 actual application must be made, 384. 
 
 simple agreement to pay in a certain way will not satisfy the stat- 
 ute, 384. 
 
 payment to an agent sufficient, 389. 
 
 payment to a third party, when sufficient, 384, n. 1. 
 
 words alone will not satisfy the statute as to payment, 385, 386, 
 ' 387. 
 
 cash, work and materials as payment, 300. 
 
 part payment implies receipt and acceptance, 304, 388, 389. 
 
 debt due to the agent of the buyer from seller, applied, not suffi- 
 cient, 391. 
 
 case of Ireland v. Johnson, on the subject of a promissory note as 
 part payment, 391. 
 
 distinction between purchaser's own note and a note of a third 
 person as to being earnest or part payment, 391, 395. 
 
 note of a third party may be received as part payment, 391, 395. 
 
 surrender of old note as part payment, 392, 395. 
 
 Lyon, J., opinion of, as to surrendered note being payment, 
 392, 395. 
 
 the seller may receive note held against him in payment, 395. 
 the statute does not condemn sales in any case, 364. 
 but the sale must be authenticated, 364. 
 
 part payment, acceptance or receipt, requirements of, 364. 
 
550 SALES 
 
 EARNEST AND PART PAYMENT — continued. 
 
 part performance may originate with the buyer or seller, 388. 
 mutual assent necessary in any case, 388. 
 part performance avoids operation of the statute, 133, 295. 
 acts relied upon as to part performance must refer to the con- 
 tract, 133. 
 " at the time," words used in many statutes as to payment, 290, 
 
 367, 376. 
 meaning of the statute, 371. 
 
 contract taken out of the statute only when payment so made 
 
 .366, 370. 
 words " at the time," in Massachusetts statute, construed, 373. 
 Earl, C, opinion of, upon the subject of payment at the time, 
 
 370. 
 what will not be a payment " at the time," 370. 
 a case illustrating the subject, 261, 371. 
 payment accepted with concurrence of the parties, sufficient, 
 
 374. 
 anything in lieu of money as payment must be paid at the time, 
 
 375. 
 Cole, C. J. , opinion of, as to payment at the time, 376, 380. 
 Lyon, J., on the same subject, 379. 
 revised statutes of New York on the subject, 367, n. 2. 
 decisions under the New York statute, 377. 
 what payment held not sufficient, 379, 381. 
 what is a payment "' at the time " of the contract, 383, 385, 
 case of Brabin v. Hyde on the subject, 385. 
 
 part payment at the time, an early case, 393. 
 case of Thornborow v. Whitacre, 394. 
 contract for " two rye corns next Monday," etc., 394. 
 " impossible " contracts may be enforceable by law, 394. 
 " foolish contracts hold in the law,'' instance of, 394. 
 in states where the statute does not require payment to be made 
 
 " at the time," the courts hold it necessary, 367. 
 payment and acceptance, distinction between, 376. 
 reformation unnecessary where earnest is paid, 382. 
 " at the time," conclusions as to part payment, 395. 
 not " at the time," payment made, where contract is re-affirmed or 
 restated, 368, 376, 395. 
 a cause of action arises then, C68, 370. 
 
 minds of the parties must meet upon re-affirmance, 370, 376. 
 it is necessary that the contract be restated, 376. 
 a new contract then entered into, 370, 372. 
 proof necessary to show restatement of contract, 371. 
 contract is valid from the time of adoption and payment, 372, 
 373. 
 
INDEX. 551 
 
 EARNEST AND PART PAYMENT — continued. 
 
 effect of subsequent delivery of the goods, 372. 
 
 " new contract " made, when payment takes place, 373, 374: 
 
 review of cases as to subsequent payment, 374. 
 
 nice distinctions disregarded, 376. 
 
 exercise of ownership sufficient to satisfy the statute, 377. 
 
 example of restatement of oral contract and part payment, 
 378, 395. 
 instance of part payment made where the contract was insuffi- 
 cient, 379. 
 in case of refusal of second payment, 163. 
 case of Paine v. Fulton, involving the subject, 379. 
 goods delivered presumably upon an oral contract made some 
 time before, not sufficient, 380. 
 payment where nothing is said as to its application, 89, 98, 370. 
 case of Hunter v. Wetsell, involving the subject, 370. 
 
 agreement to extend time to' pay balance of purchase price, is 
 
 not a new contract, 393. 
 new consideration not necessary for an alteration of the time of 
 
 payment, 393. 
 case of Parker v. Steward, as to extension of time of payment, 
 393. 
 EASTMAN, J. 
 
 opinion of, on delivery of goods, 253. 
 
 ELBERT, C. J. 
 
 opinion of, on delivery of goods, 329. 
 
 ELLENBOROUGH, LORD. 
 
 opinion of, on bought and sold notes, 504. 
 
 ENGLISH RULE. 
 
 deductions from the English rule as to contracts for chattels, 155. 
 
 ENTIRE CONTRACT. 
 
 when is a contract entire, 100. 
 
 if part of an entire contract is void, it is all void, 107, 129. 
 
 the good part of a contract cannot be separated from the bad and 
 separately enforced, 107. 
 
 where part of the contract is prohibited by the statute, the valid 
 part may be available, 107, n. 1. 
 
 contract for personalty, including realty, part as to personalty is 
 valid, 129. 
 
 where the part of a contract within the statute is executed, the 
 rest may be enforced, 133a, n. 4. 
 
 when the contract is entire, delivery of a part will validate the con- 
 tract, 294, 295, 296, 585. 
 
 exception to the rule, 297. 
 
 (See Contracts Within the Statute ; Contracts Without the 
 Statute.) 
 
552 SALES. 
 
 EQUITY. 
 
 as affecting the statute of frauds, 133. 
 
 EVIDENCE. 
 
 at common law a parol contract for a chattel is valid, 130. 
 French law, verbal evidence, 13, n. 2. 
 Roman law, as to written evidence, 13, n. 2. 
 
 under the statute of frauds the contract must be in writing, 
 
 409. 
 the statute prescribes a rule of evidence. 4, 24. 
 
 burden of proof is upon the party who relies upon the con- 
 tract, 250. 
 of evidence of compliance with the contract, 317. 
 
 when is written evidence of a contract dispensed with, 
 251. 
 as to evidence of acceptance of goods, 269, 277, 285. 
 what is sufficient evidence of, 314, 319. 
 of delay in repudiating contract, 314. 
 
 it is error to exclude evidence of contents of a telegram 
 which, by mistake, was not sent, which stated that 
 purchaser declined to take the goods, 292. 
 parol evidence admissible to show that, 292. 
 parol evidence not admissible, 405, 443. 
 
 to prove modification of a written agreement, 63. 
 to show facts in connection with the memorandum, 443. 
 to show the quantity of goods under the contract, 443. 
 to increase the quantity over the memorandum, 416. 
 to explain a sale-note, 509. 
 
 evidence of a parol agreement mutually beneficial to the 
 
 parties is not admissible, when, 210. 
 parol evidence not admissible to show the connection of an 
 
 unsigned paper with a signed one, 462. 
 nor to connect documents to make a valid memorandum, 
 
 433. 
 nor to release a party from a contract to purchase shares of 
 
 stock in a corporation, 151. 
 nor to show an agreement to purchase a pew, 116, 117. 
 exceptions as to the admissibility of parol proof, 405. 
 parol evidence admissible, 405. 
 example of, 405. 
 parol evidence may be used to show that A. simply made the 
 
 contract for B. as agent, 435. 
 may establish trusts in personalty, 129. 
 
 to show that something to be done, not included in the 
 memorandum, is included in another paper, and what it is, 
 412. 
 (See Parol Pkoof.) 
 
INDEX. 553 
 
 EXECUTORY CONTRACTS, 
 common law as to, 13. 
 formerly not required to be in writing, 13. 
 statute of frauds affects, 15. 
 Lord Tenterden's act as to, 14. 
 early rule excluding them from the operation of the statute, 15, 
 
 39, 80. 
 are held within the statute, 28, 39. 
 English rule as to, 39, 83. 
 American rule as to, 39. 
 when entirely executory, 28, 83. 
 rule of construction in New Hampshire, 88. 
 when contract to be executed in present!, 37, 83. 
 when not immediately to be executed, 75, 80, 83. 
 conflict of opinion on the subject, 37. 
 statute must be complied with, 120. 
 as to the sale of chattels, 289. 
 
 as to the sale of crops, to be severed before vesting in purchaser, 153. 
 an executory contract of a certain kind void, 120. 
 for the sale of chattels, 212. 
 where profits and losses are to be shared, 128. 
 another example, 83, 120. 
 
 rule of Garbutt v. Watson, the true one, 75, 83. 
 Lord Mansfield's decision as to, 83. 
 
 executory contracts declared not within the statute, 81, 83. 
 apology for Lord Mansfield's opinion, 83. 
 policy of the decision rejected, 80. 
 a subject of surprise that such contracts were ever declared to be 
 
 without the statute, 75. 
 (See Statute of Frauds; "Work and Labor.) 
 
 FACT. 
 
 what is a presumption of fact, 256. 
 of the ultimate fact, 256. 
 
 the court will withhold facts from the jury when they are not 
 
 sufficient to show acceptance of goods, 256. 
 as to artificial reasoning and natural reason of the court in 
 
 passing upon the question of acceptance, 256. 
 facts in a case determine the question of receipt of goods, 284. 
 fact of performance of a contract may be disputed although 
 there has been an acceptance, 258. 
 
 FRENCH LAW. 
 
 the French law as to verbal evidence, 13, n. 2. 
 
 GEORGIA. 
 
 statute of frauds of Georgia, 65. 
 
 " treasury checks," not within the statute, 147. 
 
554 SALES. 
 
 GILFILLAN, C. J. 
 
 opinion of, as to delivery of goods to carriers, 350. 
 
 GOLD. 
 
 is personal property, 153. 
 
 a commodity, 152. 
 
 a contract for, must be made in compliance with the statute, 152. 
 
 GOODS, WARES AND MERCHANDISE, 
 of large signification, 137. 
 
 mean tangible and corporeal movable property, 136. 
 commodities bought and sold in trade and commerce, 136. 
 general definition of, 136. 
 meaning, liberal interpretation, 136. 
 lexicographers' definition of, 136. 
 " contract for the sale of," meaning of, 26. 
 courts are influenced by definition of, 136. 
 wording of, the statute of frauds of the several states, 25. 
 goods, definition of, 136. 
 
 includes merchandise and chattels, 136. 
 
 is nomen generalissimum, 136. 
 
 under the civil law, meaning of, 137. 
 
 bona in the civil law, 137. 
 
 bona and biens in the early English statutes, 137. 
 
 merx est quicquid vendi potest, 137. 
 goods and chattels, cover most everything trafficked for, 137. 
 
 embrace promissory notes, 152. 
 
 meaning of, depends upon the subject-matter, 137. 
 " good's and wares," distinguished from merchandise, 136. 
 wares, meaning of, merchandise commodity, 136. 
 
 commonly something to be sold, 136. 
 merchandise, meaning of, distinguished from goods and wares, 136. 
 
 personal things used in trading, 137. 
 maxims and phrases, 137. 
 
 construction of the statute of frauds as to, 138. 
 
 rule of interpretation of statutes, 138. 
 
 of goods in substantial existence, 44. 
 
 if subject-matter be goods at completion of contract it is within 
 the statute, 95. 
 
 brewery trucks considered as goods, 70. 
 
 where skill is employed on goods, 93. 
 goods, shares of stock, as, 139, 142, 145, 150. 
 
 shares of stock are within the statute, 139. 
 
 variant decisions on the subject, 139. 
 
 language of the statute of different states, 139. 
 
 English decisions hold that shares of stock are not within the 
 statute, 139. 
 
INDEX. 555 
 
 GOODS, WARES AND MERCHANDISE — continued, 
 first case on the subject, 140. 
 held to be choses in action, 139. 
 incorporeal rights not within the statute, 139. 
 documents of title without the statute, 139. 
 
 early doubts expressed as to shares falling within the statute, 140. 
 a case made and heard before all the judges of England, 140. 
 the bench divided on the question, " six against six," 140. 
 Lord Chancellor considered the subject too difficult for him, 140i 
 n. 2. 
 demurrer, as to stocks being within the statute, 140, n. 3. 
 the case of Massell v. Cooke, 141. 
 referred to by Gray, C. J., 141. 
 chancery court of England held shares to be within the statute, 
 
 141. 
 and that contracts for sale of, were nuda pacta, without 
 earnest, 141. 
 question deemed unsettled when Mr. Comyn wrote his work on 
 
 contracts, 142. 
 now settled in England that a contract for the sale of shares of 
 stock is not within the statute, 142. 
 American courts generally hold shares of stock to be within the 
 
 statute, 142, 144, 146, 149. 
 contracts for sale of stocks void unless the requirements of the 
 statute complied with, 142, 144, 145, 145, n. 1. 
 reasons why they fall within the statute, 143. 
 views of Shaw, C. J., on that subject, 144. 
 danger of perjury in sales of, 144, 145. 
 common sense view of the subject, 144, 149. 
 "goods,'' shares of stock held to be within the meaning of the 
 
 statute of several states, 140, 145, 148, 150. 
 Walton, J., opinion of, why shares are embraced within the 
 
 statute, 149. 
 Ames, J., opinion of, on the same subject, 149. 
 Waite, J., opinion of, on the same subject, 151. 
 California courts hold shares of stock to be within the statute, 146. 
 contract for the sale of mining stock, within, 146, n. 3. 
 " personal property," statute of Connecticut reads : shares of stock 
 
 within the statute, 148. 
 in Florida, shares of stock are declared within the statute, 146. 
 "treasury checks" in Georgia, held to be within the statute, 147. 
 Indiana, where statute reads " goods," shares of stock are not within 
 
 the statute, 147, 148. 
 " notes " held not within the statute, 147, 148. 
 " checks " not within, 147, 148. 
 " bonds " not within, 147, 148. 
 
556 SALES. 
 
 GOODS, WARES AND MERCHANDISE — continued. 
 " evidences of value" not within, 147. 
 Indiana and English statute construed, 148. 
 an invention is not goods, 143. 
 statute does not extend to certain securities, 149. 
 in Maine, shares held within the statute, 146. 
 in Maryland, where words "personal property" are used in the 
 
 statute, shares of stock within, 146. 
 in Massachusetts, shares of stock held to be goods, 144, 148. 
 in Missouri, shares of stock within the statute, 145. 
 in Vermont, shares of stock held as goods, etc., 146. 
 in New Hampshire, where . statute reads "goods, wares and mer- 
 chandise," promissory notes held within the statute, 147. 
 in New York, shares of stock held not within the statute, 147. 
 "goods, chattels, and things in action," does not include stock, 147. 
 stock sold and taken back, statute does not apply, 147, n. 3. 
 
 "goods, wares and merchandise" embrace stocks, 144, 150. 
 
 conflict of opinion as to, 150. 
 
 remedy intended by the legislature, 145. 
 
 leading cases as to sale of shares of stock, 150. 
 securities not of common sale and barter are not within the statute, 
 149. 
 
 subscription to shares of corporation about to be formed, 150. 
 
 agreement to repurchase, invalid, when, 150. 
 
 transaction as to sale and resale not changed, 150. 
 discharge from contract for sale of shares, not sufficient considera- 
 tion of release to pay, 151. 
 parol promise insufficient, 151. 
 must be on sufficient consideration, 151. 
 " moral obligation," sufficient consideration, when, 151. 
 part performance unavailing in stock transactions, 151. 
 
 " promissory notes," held to be within the statute, 152. 
 ' personal chattels are movable goods," 152. 
 
 meaning of certain words, 152. 
 
 Grover, J., held that " gold" was within the statute, 152. 
 
 "gold" is personal property, 152. 
 
 statute of frauds embraces gold, sold, 152. 
 invention, sale of an interest in, not within the statute, 143. 
 evidence of a right, not within, 143. 
 "in specie," as applied to the statute, 143. 
 statute extends to what kind of property, 143. 
 (See Sample, Goods Sold by.) 
 
 GRAY, C. J. 
 
 opinion of, on the question of acceptance and receipt sufficient to 
 
 satisfy the statute of frauds, 268. * 
 
 an old case referred to by, 141. 
 
INDEX. 557 
 
 GRAY, J. 
 
 opinion of, on delivery of goods to carriers, 340. 
 
 GROVER, J. 
 
 opinion of, as to gold being a commodity and within the statute, 
 152. 
 
 GROWING CROPS. 
 
 of growing crops under the common law, 154. 
 
 anything which was the subject of larceny was deemed to be goods, 
 
 154. 
 larceny could be committed on them at common law, 154. 
 
 statute of frauds wrough no change as to the law of growing 
 
 crops, 154. 
 rule of construction as to, 154. 
 they are chattels, 154. 
 what crops fall within the meaning of the statute, 159. 
 Mr. Justice Blackburn's opinion, as to growing crops and chattels, 
 154. 
 " no contract for the sale of any goods," construction of the 
 words, 165. 
 anything attached to the soil, 153, 154. 
 first distinction, part of the realty in the interim, 155. 
 contract for property attached to the soil must be evidenced by writ- 
 ing, when, 153. 
 English rule deduced as to a contract for a chattel, 155. 
 first distinction as to growing crops, 153, 170. 
 second distinction as to the sale of, 153. 
 
 before severance; contract for sale of property attached to the soil 
 before severance must be in writing, 153, 154. 
 it is not a contract for the sale of goods, 154. 
 after severance; contract for the sale of a crop after severance is 
 valid by parol, 153, 170. 
 as to a sale of goods, where transfer is after severance, 154. 
 cut logs are goods, 154. 
 cases as to growing crops reconcilable, 157. 
 a contract takes its character of personalty or realty for the sale of 
 
 crops from the principal subject-matter, 177. 
 and from the interest of the parties, 177. 
 Hovey, J., opinion of, as to growing crops, 166. 
 distinctions drawn as to growing crops being within the statute, 
 
 157. 
 "annual," some products are not, 157. 
 as to products yielding successive crops, 157. 
 crops the second and third year, 157. 
 " clover,"' crops before being exhausted, 157. 
 " madder " and " teazle,'' as to crops of, 157. 
 
558 SALES. 
 
 GROWING CROPS — continued. 
 
 Denman, Lord, as to growing crops, 157. 
 crops the first year are fructus industriales, 157. 
 and fructus naiurdles after the first year, 157. 
 fructus industriales, what classed as, 156, 177. 
 
 growing produce, whether mature or immature, 153, 170, 177. 
 are not affected by the statute, 164. 
 what are crops, fructus industriales, 156. 
 what crops are, until exhausted, 157. 
 crops requiring cultivation, 157. 
 subjects grown by industry and labor, 158. 
 statute does not affect, 177. 
 chattels and goods, 156. 
 
 growing crops, it fructus industriales, are, 153. 
 before or after severance, contract 'for, is a sale of, 153, 154, 
 
 170. 
 "sale of goods," growing produce reared by labor, 160. 
 crops not requiring cultivation, 157. 
 Littledale, J., as to growing produce, 160. 
 corn and potatoes are chattels and goods, 160. 
 what embraced in fructus industriales, 160, 170, 176, 177. 
 "fruits" which require periodical labor and attention in their 
 
 yield, are, 176. 
 "grain," pi-oducedby industry of man, 156, 177. 
 "cotton," is so denominated, 156. 
 vegetables generally, 156. 
 " hops" are fructus industriales, 160. 
 
 in general the courts hold that contracts for the sale of growing 
 crops, if fructus industriales, are not within the statute, 164, 
 176, 177. 
 they are personal property, 165. 
 
 Indiana, decisions of, as to sales of growing crops, 166. 
 California, decisions of, as to, 166. 
 
 Crocker, J., opinion of, as to a sale of growing crops, 164. 
 writing not required in sale of, 164, 170. 
 where purchaser of a crop is to have the sole right to the land to 
 derive a profit therefrom, the contract is affected by the stat- 
 ute, 170, 177. 
 a contract to convey a mere chattel, although in the interim a 
 
 part of the realty, the statute does not affect, 177. 
 a crop is a chattel, though for a time part of the realty, when, 
 
 177. 
 crops periodically raised by manurance and industry of man do 
 
 not fall within the statute, 177. 
 they are a subject of sale, 165. 
 
 involves no interest in land, 165, 170. 
 
INDEX. 559 
 
 GROWING CROPS — continued. 
 
 "corn '' may be sold while standing in the field, 165. 
 where part payment is made on, 165. 
 corn in field bought, partly delivered, and paid for in services, 
 
 165. 
 question of title in such case, when corn sold to another, with 
 
 knowledge, 165. 
 what amounts to a delivery of growing corn, 166. 
 breach of contract as to sale of hogs and corn, 166. 
 fruit, sale of, 175. 
 
 arbitrary rule as to, 175. 
 
 some grown by great labor, some by little cultivation, 175. 
 fruits are chattels when severed, 175. 
 
 contract for fruit in a ripe condition is not affected by the stat- 
 ute, 175. 
 
 though purchaser is to enter upon the land and gather it, 175. 
 severance in law and in fact, 175. 
 distinction between, 175. 
 
 Maryland decisions as to contracts for the sale of growing 
 
 fruits, 176. 
 Stewart, J., opinion of, as to contracts for the sale of grow- 
 ing fruit, 176. 
 " peaches " classed as fructus industrials, 176. 
 statute does not include such contracts, 176. 
 where purchaser is to remove the crop, 176. 
 license, express or implied, for purchaser to gather the fruit, 
 176. 
 statute, objects of, would be perverted if a contract of sale of grow- 
 ing crop of peaches, with implied license to gather the fruit, were 
 held invalid, 176. 
 hops as personal property, 158. 
 as emblements, 158. 
 
 any natural growth of the soil, not emblements, 194. 
 hops growing out of old roots, 158. 
 root of hops is perennial, and grown by industry, 158. 
 raised annually by labor and cultivation, 159. 
 as to parol contract for sale of hops, 159. 
 where part payment is made in sale of, 159. 
 contract for sale of growing hops, within the statute, 159. 
 when hops to be delivered to defendant's kiln, 159. 
 " goods, wares and merchandise," growing crops not embraced in, 
 
 when, 160. 
 Park, B., opinion of, aa to contract for the sale of growing hops, 
 
 160. 
 memorandum necessary, when, 159. 
 hops maturing on the vines, contract for, within the statute, 159. 
 
560 SALES. 
 
 GROWING CROPS — continued. 
 
 Morgan, J., opinion of, on the subject, 101. 
 
 when will a sale of hops fall within the stamp act, 161. 
 
 an agreement for the sale of goods and something more, where 
 
 hops are sold which shall grow on certain acres of land, 161. 
 "hop-grounds,'' interest in, 161. 
 as to contract for the sale of hops not in the state of goods at the 
 
 time, how statute affects, 161. 
 " all the hops that should grow " on a certain piece of land, contract 
 
 for, exempted from the stamp act, 161. 
 "potatoes," contract for, to be raised on three acres of land, 168. 
 whether writing necessary, 168. 
 contract for work and labor, what is, 168. 
 
 Bellows, J., opinion of, on contracts affected by the statute, 168. 
 skill of workman may be bargained for, 168. 
 statute does not apply, when, 168. 
 when employer is entitled to skill and labor of a workman he is not 
 obliged to take any other, 168. 
 when a mixed question of law and fact, 168. 
 jury to pass upon such question, 168. 
 
 what is a contract " essentially for work and materials," 168. 
 what is substantially a sale of potatoes, 168. 
 consideration for the agreement, 168. 
 
 " doubtful and conflicting claims," to sustain an agreement, 168. 
 " a cover of potatoes," then in the ground, contract for, 169. 
 not an interest in land. 169. 
 
 earnest paid, on account of a cover of potatoes in the ground, 169. 
 Bayley, J., opinion of, in such case, 169. 
 " contract for goods," where potatoes are to be raised on a certain 
 
 piece of land, but no part of land to vest, 169. 
 it is a sale of " goods and chattels," 169. 
 potatoes mature in the ground, sale of, a chattel, 170. 
 where price is agreed upon, 170. 
 the contract is within the statute, 170. 
 
 " mere warehouse for potatoes," land is, where the product is ma- 
 ture in the ground, 170. 
 no interest in the land, 170. 
 California, case of Davis v. McFarlane, 163. 
 
 Sanderson, J., opinion of, as to growing crops, 163. 
 what is an interest in land, 163. 
 
 growing crops, fruetus industriales, sale of, valid without writ- 
 ing, 162, 163. 
 when crops not liable in execution, 162. 
 where mortgage is given on growing crop, 162. 
 when crop not subject to execution, 162. 
 Sprague, J., opinion of, on the same subject, 162, 
 
INDEX. 561 
 
 GROWING CROPS — continued. 
 
 where a part of crop is for services, 162. 
 
 " annual produce," what is a crop of, 173. 
 
 case of sale of hay, wheat and barley, 162, 164. 
 
 until nature has prepared a crop for delivery, it is not within 
 
 the statute, 163. 
 chattels, as crops, do not fall within the statute, 163. 
 " absolute intention " as to sale of crops, 163. 
 rule that growing crops are not within the statute, is not affected 
 by the fact that vendee is to have possession of the land to 
 harvest crop, 163. 
 when are growing crops not within the statute, 163. 
 groinng wheat is a chattel, 156. 
 writing not required in sale of, 163. 
 
 vendee is entitled to ingress and egress to gather crop, when, 156. 
 wheat growing, may be sold on execution, 156. 
 in case of conversion, 163. 
 delivery of crop by delivery of possession of land, 163. 
 
 delivery, failure of, 164. 
 where part payment is made, 163. 
 
 where purchaser pays certain expense of as to growing crop, 163. 
 sale of a growing crop on public land, 163. 
 what amounts to possession of growing crop, 163. 
 case of resale of growing crop, 164. 
 where payment is to be in grain, 164. 
 
 " half the crop " for services, case of, 167. 
 
 where purchaser contracted for all the barley that should be 
 raised on two farms, and price agreed upon, but receives half 
 the crop, case of, 167. 
 purchaser may refuse to accept, when, 167. 
 " breach of the contract," where party refuses to accept barley 
 
 not of the seller's raising, 167. 
 trespass will lie for loss of a crop of wheat, when, 167, n. 2. 
 tobacco, sale of growing crop, 164. 
 title in vendor till delivery, 164. 
 delivery cannot be had till raised, 164. 
 acceptance of crop, what will amount to, 164. 
 fructus naturales, governed by statute, 153. 
 
 such products before severance, a part of the soil, 153. 
 
 " fruit on trees," held to be, 156. 
 
 "grass," held to be, 153, 156. 
 
 " timber,'' and the like, 156. 
 
 construction, as to sales of crops, fructus industriales, and 
 
 fructus naturales, 153. 
 growing crops, fructus naturales, if to vest in buyer after 
 severance, are chattels, 153, 158, 159. 
 36 
 
562 SALES. 
 
 GROWING CROPS — continued. 
 real estate, hop roots, when, 158. 
 
 where subject grows without cultivation, 158. 
 
 what is declared an interest in land, 158, 177. 
 
 distinction existing before the statute, 156. 
 
 growing trees a part of the land, 154. 
 
 reference to the fourth section, 155. 
 
 what leases not exempted in English statute, 155. 
 
 where leases for a year and less are excepted from the statute, 
 
 rule as to, 155. 
 when are growing hops not real estate, 159 
 principal subject-matter, contract takes its character from, for 
 
 sale of crop, 177. 
 " grass," contract for, to be cut by vendee, 171. 
 writing required in such a contract, 171. 
 
 seventeenth and fourth sections, difficulty of determining 
 whether certain contracts are within the one or the other, 171. 
 grass growing, goes to grantee, when, 172. 
 goes to the heir, 173. 
 not assets, when, 159. 
 conflict of authority, as to a parol contract for the sale of growing 
 grass, fruit or trees, with right of vendee to remove same, 
 being within the statute, 172. 
 is a sale of fruit, an interest in land, 172. 
 sale of natural produce of the earth, 173. 
 annual produce of labor, and natural produce, 173. 
 chattels, and interest in land, distinction, 173. 
 after being severed, grass may be seized as a chattel, 173. 
 grass already grown, sale of, by parol, 174. 
 Cole, J., opinion of, as to contract for the sale of growing grass, 
 172. 
 growing turnips, sold, and no time agreed upon for their delivery, is 
 
 an interest in land, 170. 
 the land is more than a " warehouse,'" when, 170. 
 case of Parker v. Staniland, 170. 
 assets, what are, 159. 
 
 "assets," crops growing, except grass and fruit not gathered, 159. 
 New York statute as to assets, in crops, 159. 
 "fruit not gathered," not assets, 159. 
 
 where purchaser has right to land while crop is ripening, to make 
 profit from the growing surface, contract affected by the statute, 
 155. 
 contract is for an "interest in land" where an immature crop is 
 
 sold and no time is fixed for its removal, 170. 
 so where the land is to afford support and sustenance, 170. 
 of parol consent to a levy on chattels, 173. 
 (See Timber and Trees Growing.) 
 
INDEX. 563 
 
 GUILFORD, LORD. 
 
 said to have prepared certain sections of the statute of frauds, 7, 
 
 assisted in having the statute passed, 7. 
 
 Lord Campbell's and Macaulay's opinion of him, 7. 
 
 HALE, SIR MATTHEW. 
 
 one of the principal authors of the statute of frauds, 5. 
 
 he drafted the statute ; it had its first spring from him, 5, 6. 
 
 reasons for the conclusion, 6, 8. 
 
 great common law lawyer, 5. 
 
 wrote the history of the common law, 6. 
 
 pleas of the crown, 6. 
 
 interest in the law of personal property, 6. 
 his opinion on common law and equity, 8, n. 4. 
 on the different statutes, 23. 
 
 Lord North's opinion of him, 6. 
 
 a venerated name, 6. 
 
 Runnington's opinion of Lord Hale, 6. 
 
 Lord Campbell's opinion of, 6. 
 
 Lord Nottingham worshiped him, 8, n. 4. 
 he resigned as chief justice, 6. 
 died Christmas day, 1676, 6. 
 
 HEBARD, J. 
 
 opinion of, on the subject of license in vendee to enter upon land of 
 vendor and remove timber or anything attached to the soil, 207. 
 
 HOLLAND, PROFESSOR. 
 
 opinion of, as to the effect and meaning of words, "allowed to be 
 good," in the statute of frauds, 400. 
 
 HOVEY, J. 
 
 opinion of, as to the sale of growing crops of grain, 166. 
 
 HUNT, J. 
 
 opinion of, in the case of Butler v. Thompson, as to the law of bought 
 and sold notes, 507. 
 
 ICE AS GOODS. 
 
 ice is a product of water, 216. 
 
 is ice goods, wares and merchandise, 213. 
 
 is changed in form, when, 213. 
 
 ice and water, as to property in, 214, n. 3. 
 
 character of, generally, 216. 
 
 when may ice be taken from a stream, 214, n. 3. 
 
 ice, cutting, storing and preparing it for sale, not a manufacture, 
 
 215. 
 a natural production, as sand, gravel, coal, fruit, 215. ' 
 ice made by frigorific effects, a manufacture, 215. 
 
564: SALES. 
 
 ICE AS GOODS — continued, 
 ice is personalty, 216. 
 
 whether in or out of water, 216. 
 
 whether it is realty, 216, 216, n. 1. 
 
 ice sold by parol, 216. 
 
 sale of ice, when particular scope of it is designated, 216. 
 resale of ice where price has been paid, case of Higgins v. Kusterer, 
 216. 
 
 ice not like fruit or crops, 216. 
 
 " nourishment before maturity," as to fruits, 216. 
 title to ice in possessor of the water, 216, 216, n. 1. 
 owner of bed of the stream may prevent removal of ice, 216, n. 1. 
 reasons why ice is personalty, 216. 
 ice has no organic connection with the estate, 216. 
 " black letter metaphysics " not required in deciding as to what ice is, 
 
 216. 
 to be dealt with according to its use in fact, 216. 
 ice and water, distinction between, 216, n. 1. 
 (See Manufacture.) 
 
 INDIANA. 
 
 statute of frauds of, in effect same as the English, 115. 
 
 the statute reads, " goods," 147. 
 
 Buskirk, J., construction of the statute, 148. 
 
 rule of English courts followed as to shares of stock not being 
 
 within the statute of frauds, 148. 
 " goods" does not mean shares of stock, 148. 
 " evidences of value," not within the statute, 147, 148. 
 " bonds," not within, 147, 148. 
 " checks," not within, 147. 
 "promissory notes," not within, 148. 
 law as to contracts for the sale of growing crops, 166. 
 "unless the purchaser shall receive," language of the statute of 
 
 frauds, 287. 
 
 INGALLS, J. 
 
 opinion of, as to the intention of the legislature in regard to the 
 note or memorandum, 440. 
 
 INVENTION. 
 
 contract for an interest in an invention is not within the statute of 
 
 frauds, 143. 
 evidence of a right, not within the statute, 143. 
 statute extends to what kind of property, 143. 
 in specie as applied to the statute, 143. 
 (See Statute of Frauds.) 
 
INDEX. 565 
 
 IOWA. 
 
 " delivered," used in the statute of frauds of Iowa, not the word ac- 
 cept or accepted, 347. 
 code of Iowa as to evidence of contracts, 245, n. 6. 
 
 JENKINS, SIR LEOLINE. ' 
 
 was one of the authors of the statute, 5, 7, 8. 
 authority in probate law, 7. 
 drew the sections as to ■wills, 7. 
 
 absent from England when the statute of frauds was passed, 7. 
 ninth report of historical MSS. commission ascribe the authorship 
 of certain sections of the statute to, 7. 
 
 johnson, j. ; 
 
 opinion of, as to the question of title to cut trees, under the statute 
 of frauds, 187. 
 
 JURY. 
 
 the jury decide as to inferences of fact, 440. 
 jury to pass upon mixed question of law and fact, 168. 
 to determine ultimate facts from probative facts, 256. 
 on question of intention, 262. 
 
 to find whether the contract was restated or reaffirmed or not, 371. 
 jury are to pass upon the question of acceptance of goods, 277, 279, 
 282, 282a. 
 when goods were delivered to a carrier, 339. 
 whether there is sufficient evidence of acceptance, 249, 251, 252> 
 
 256, 262, 277, 282. 
 •when justified in finding an acceptance, 319, 320. 
 as to whether the contract has been proved, 97. 
 
 whether there has been a complete performance of the con- 
 tract, 71. 
 ■whether the circumstances show acceptance, 282a. 
 ■whether the rejection of goods was within a reasonable 
 
 time, 282. 
 whether was a delivery of the goods, 293. 
 
 when the delivery is constructive or symbolical, 327, 
 
 332. 
 verdict may be set aside, when, 326a. 
 whether the bulk was equal to sample, 319, 324. 
 of the fact of possession in the buyer, 113. 
 damages, a question for the jury, 97. 
 jury not to pass upon value of art work, when, 124. 
 instance of instructions to jury correctly refused, 166. 
 as to special findings of a jury, 290. 
 signature, where the signature to the memorandum appears in the 
 body of the instrument, jury to determine question of inten- 
 tion of the parties, 466, 473. 
 
566 SALES. 
 
 JURY — continued. 
 
 broker's note, as to its delivery, 498, 499, 514. 
 as to the delivery of a sale-note, 513, 514. 
 province of jury not ordinarily trenched upon, 513. 
 court, when to withhold case from the jury, 257, 258. 
 
 jury to say whether acceptance of bought and sold notes is evi- 
 dence of a new contract, 514. 
 
 KENT, CHANCELLOR. 
 
 opinion of, as to cost of litigations under the statute, 8. 
 on the meaning of the statute as to memorandum, 470. 
 as to the signature of the parties, 483. 
 
 KENT, C. J. 
 
 opinion of, as to sufficiency of broker's memorandum, 502. 
 on delivery and acceptance under the statute, 306. 
 
 LAKE, J. 
 
 opinion of, on the subject of the statute of frauds as to pleading, 
 583. 
 LAW. 
 
 power of, to control conduct, small, 27. 
 should be adjusted to habits of society, 27. 
 
 conclusion of law, the result of artificial reasoning, 256. 
 
 LAW OP PLACE. 
 
 (See Place of Contract.) 
 
 LEGISLATURE. 
 
 intention of the legislature, the guide in construing a statute, 1. 
 
 has supplanted the chancellor, 19. 
 
 statute and common law came from the legislature, 23. 
 
 all law begun by the consent of the legislature, 23. 
 
 LE GRAND, J. 
 
 opinion of, in case of repurchase of standing trees, 188. 
 
 LEX LOCI. 
 
 (See Place oe Contract.) 
 
 LEXSCRIPTA. 
 what it is, 23. 
 
 LEX NON SCRIPTA. 
 
 what is deemed to be, 23. 
 
 LICENSE IN THE VENDEE. 
 meaning of license, 200, 211. 
 license, what it is, 211. 
 is not a grant, 208. 
 who may grant a license, 199. 
 
INDEX. 567 
 
 LICENSE IN THE VENDEE — continued. 
 
 license, privilege, easement, distinction between, 210. 
 
 license does not extend beyond the interest of vendor, 199. 
 
 "license; sale;" legal form, 206. 
 
 does not pass any estate in land, 200, 201, 212. 
 
 distinction between license and interest in land, 211. 
 
 license good without writing, 201, 204, 211. 
 
 when license implied, 199. 
 
 case of Witmarsh v. Walker, 201. 
 
 license may be pleaded without deed, 200. 
 
 evidence of a parol agreement mutually beneficial to the parties not 
 
 admissible in evidence, when, 210. 
 evidence of a licensee, qualifications as to, 210. 
 defense to the license, 206, 209. 
 when license executed, 209. 
 
 execution of license, a defense against action Dy licensor, 206, 209. 
 licensee a trespasser, when, 209. 
 
 what will amount to a license in the vendee, 201, 204, 206, 209. 
 implied license, 199. 
 case of Owens v. Lewis, 207. 
 
 license to cut timber will protect purchaser from anything done un- 
 der it, 206. 
 license follows a verbal sale of timber, 199, 206. 
 right or license to enter upon land by vendee inferred from the con- 
 tract, 199, 206. 
 special license, 203. 
 
 character of the thing purchased influences, 203. 
 decisions of Maryland and England on subject of license, 203. 
 license incidental to an executed contract, 212. 
 immaterial whether the thing is severed by the vendor or 
 vendee, 203. 
 implied or express license, 176, 211. 
 
 in vendee to go upon vendor's land and gather the crop, 176, 
 
 207, 211. 
 or to remove property, 199, 203, 207. 
 
 where severance from realty is necessary to convert subject- 
 matter into personalty, 199. 
 statute of frauds does not affect, 201. 
 
 Hebard, J., opinion of, as to license in vendee to enter upon 
 land and cut and remove anything attached to the soil, 
 207. 
 does not pass any interest in the freehold. 212. 
 after vendee has cut timber he has the right to enter and re- 
 move it, 207. 
 agent of vendee may do it, 207. 
 vendee's servant may, 207. 
 
568 SALES. 
 
 LICENSE IN THE VENDEE — continued. 
 
 license, after severance, title will be coupled with an interest 
 
 and be irrevocable, 207. 
 parol license, amounts to a permission to do acts on another's 
 
 land but carries no estate in the land, 181, 201, 211. 
 trees severed under such a license, title vests in the vendee, 
 
 207. 
 to cut timber for a fixed price for the stumpage, valid, 205. 
 parol license or agreement for the sale of growing trees, will be 
 equivalent to a license in the vendee to enter upon vendor's 
 land, 207, 211. 
 parol license is not covered by the statute, either as a sale of an 
 
 interest in land, or of chattels, 201, 205, 211. 
 good without any writing, 201. 
 
 statute of frauds does not apply to a contract whereby vendee 
 is to cut and carry away trees sold, when, 212. 
 when statute does apply in sale, 212. 
 license and privilege, distinction between, 210. 
 easement and privilege require to be in writing, 210. 
 license may be by parol, 210, 211. 
 license in form of a written agreement, conveys an incorporeal 
 
 right or easement, 181. 
 license will be acted upon, vendor bound to assume it, 206. 
 Cooley, J., opinion of, on subject of license in vendee, 206. 
 parties treating a void sale, under the statute, as valid, may be ef- 
 fectual for all purposes, 206. 
 void at the option of the parties, 206. 
 damages may be recovered on such contracts, when, 201. 
 license or interest in land, discussed, 211. 
 
 Morton, C. J., opinion of, as to a license, 211. 
 
 hiring a hall does not carry any interest in the land, 
 
 211. 
 it amounts to a license, 211. 
 lodgings, agreement for in a hotel, creates a license, 211. 
 theatre, agreement for a seat in, creates a license, 211. 
 things attached to the soil, " licensees or purchasers," 212. 
 revocation of license, when, 200, 208, 212. 
 
 cannot be revoked if upon a valuable consideration, 200. 
 
 parol license revoked by death of licensor, 208. 
 
 or by conveyance of premises, 208. 
 
 continues until recalled, 206, 208. 
 
 where license is revoked before property is removed, 199. 
 
 license cannot be revoked after trees have been cut and title to 
 
 them has vested in the vendee, 212. 
 license is irrevocable, after severance of trees, title becomes 
 coupled with an interest, 207. 
 
ixdex. 569 
 
 LICENSE IN THE VENDEE — continued. 
 
 license to cut timber protects purchaser from anything done 
 under it, 20G. 
 
 license to lay an aqueduct across land of licensor may be re- 
 voked and cut off, 208, n. 3. 
 
 (See Timber and Trees Growing.) 
 
 LITTLEDALE, J. 
 
 opinion of as to contracts for the sale of growing produce, 160. 
 
 LOVE, D. J. 
 
 opinion of, as to delivery of goods to a common carrier, 347. 
 
 LOWELL, J. 
 
 opinion of, on acceptance and receipt under the statute of frauds, 
 249. 
 
 LYON, J. 
 
 opinion of, as to part payment, 379. 
 
 as to the surrender of a note being payment, 393. 
 as to contracts generally affected by the statute, 303. 
 
 MAINE. 
 
 shares of stock held to be within the statute of frauds, 140. 
 in the sale of certain securities statute does not apply, 149. 
 where the word " goods" is used in the statute, shares not within, 
 148. 
 
 MANUFACTURE. 
 
 definition of, 52, 108, 213, 214. 
 
 sale and manufacture, distinction, 40, 48, 50, 79, 102, 112. 
 what is a manufacture, 36, 109, 213. 
 contract of manufacture, not of sale, when, 50, 58a, 278. 
 goods, what a manufacture of, 213. 
 
 construction of rule where goods entirely manufactured, 34. 
 garnering of ice a manufacture, when, 213. 
 chemical changes not necessary in, 213. 
 " iron " is a manufacture, 213. 
 " cotton " is, 213. 
 "lumber" is, 213. 
 " grinding bones " is, 214. 
 " splitting timber into staves " is, 214. 
 pieces designed for shovel handles is, 214. 
 Champlin, J., opinion of, as to what is a manufacture, 213, 214. 
 
 ice companies not manufacturing companies, 215. 
 Danforth, J., opinion of, as to ice being a manufacture when pre- 
 pared for sale, 215. 
 ice made by frigorific effects is a manufacture, 215. 
 in a manufacture a distinct object is produced, 215, n. 2. 
 
570 SALES. 
 
 MANUFACTURE — continued. 
 
 goods, when to be of vendor's manufacture, 53, 103. 
 
 case of Hight v. Ripley, on the subject of manufacture of goods of 
 
 a peculiar kind, 53. 
 manufacture of book paper, not a contract of sale, 51. 
 work and labor, a manufacture, 97, 102, 103, 110. 
 statute held not to apply to a manufacture, 101, 102. 
 case of Parsons v. Loucks, as to a manufacture, 104. 
 Gray, C, dissenting opinion of, in that case, 104. 
 
 where an article is manufactured and shipped according to order, 
 
 and destroyed by fire, vendor may recover price, 98, 99, 100. 
 property in purchaser from time of notice of completion, 99. 
 vendor's lien for the price, when, 99. 
 when contract an entirety, 100. 
 court of appeals of New York on the subject, 100. 
 rule in England and New York in certain cases, 97. 
 case of Mead v. Case, discussed, 55. 
 
 contract for a marble monument with an inscription, is a manu- 
 facture, 54. 
 rule criticised, 56. 
 a dissenting opinion, 55. 
 misapplication of an established rule, 56. 
 what is a monument, 54. 
 
 manufacture and sale, the English and Massachusetts rule as 
 to, 36. 
 goods manufactured in the usual course of business a sale, 35. 
 contract for the sale of goods regularly manufactured by the vendor 
 
 is within the statute, 34. 
 middle course adopted in some states, 42. 
 
 an article made at a place selected by the vendee is a manufact- 
 ure, 36. 
 contract for a manufacture, in some states, held not within the stat- 
 ute, 28, 44. 
 manufacture of a carriage, what, 39, 98. 
 special action on the case, when, 112. 
 articles partly manufactured under an order, not a contract of sale, 
 
 112. 
 and partly delivered, 41. 
 "felt goods," of a particular kind, manufactured, not within the 
 
 statute, 110. 
 the statute does not apply to a special manufacture, 109. 
 " stocking shoddy," manufacture of, not within, 109. 
 manufacture presumed, when, 108. 
 
 cutting butternut trees into logs, not a manufacture, 183. 
 contract for "staves," manufactured from particular lumber, with- 
 out the statute, 59. 
 
INDEX. . 571 
 
 MANUFACTURE — continued, 
 rule adhered to in Colorado, 34. 
 statute applies where the thing manufactured will result in a 
 
 sale, 73. 
 " cut nails," manufacture of, 97. 
 where an agent contracted for, 97. 
 
 " flour " to be ground out of wheat, contract for wort and labor, 
 58a, n. 2. 
 article in course of manufacture and destroyed by fire, loss falls 
 
 on the maker, 105. 
 after notice of completion of an article, loss falls on vendee, 
 105. 
 where manufacturer furnishes the material, 106. 
 agreement to build a carriage from materials partly wrought, not a 
 
 sale, 106. 
 test, difficult to determine, where the labor in the manufacture of 
 an article increases the value, 104. 
 
 MARYLAND. 
 
 shares of stock held to be within the statute of frauds, 146. 
 "personal property," in states where the statute so reads, shares of 
 stock are held to be within the statute, 146. 
 decisions of Maryland as to contracts for the sale of growing 
 
 fruit, 176. 
 statute of frauds of the state, 188. 
 
 decisions of, accord with the English cases in many regards, 
 303. 
 
 MASSACHUSETTS. 
 
 shares of stock within the purview of the statute, 144, 148. 
 statute of, as to consideration in the memorandum, 242, n. 2. 
 decisions as to consideration, 242. 
 " signed," word used in the statute, 469. 
 
 MEMORANDUM IN "WRITING. 
 
 meaning of note or memorandum, 3, 396. 
 
 before the statute of frauds contracts were good without writ- 
 ing, 396. 
 
 the common law principle as to contracts, 419. 
 
 in general the statute leaves the law as it was, 412. 
 
 the legal effect of a contract is the same as before the statute, 419. 
 
 mutuality always necessary, 421, 423, 439. 
 
 certain principles of the common law not applicable to the statute, 
 451. 
 
 agreements actionable before the statute, actionable now, 399. 
 
 statute adopted a new rule of evidence, 399. 
 
 does not render a contract void if not in writing, 399. 
 
 when does it not, 419. 
 
572 SALES. 
 
 MEMORANDUM IN WRITING — continued. 
 
 efficacy of the statute in relation to memorandum sometimes 
 
 doubted, 398. 
 policy of the statute sustained, 398. 
 the statute affects the modes of proof, 399. 
 negotiation and the contract, line between them, 419. 
 what is a note or memorandum wider the statute of frauds, 399, 
 400, 403, 404, n. 2, 405. 
 legal evidence required of the making of the contract, 396, 399, 
 
 409. 
 language of the statute of the several states, 398. 
 variation in the decisions, reason for, 397. 
 action not maintainable unless contract in writing, 399, 402. 
 not " be allowed to be good," words construed, 400. 
 Mr. Pollock on the effect of the statute of frauds, 400. 
 is the contract " void " unless the statute is complied with, 400. 
 Holland, Professor, upon that subject, 400. 
 Parsons, Professor, on the same subject, 400. 
 Dwight, Professor, on the same subject, 400. 
 Blackburn, Lord, as to the validity of the contract, 399, 400. 
 contract only void at the option of the parties, 403. 
 of the party who has not signed memorandum, 422, 423. 
 '' allowed to be good, except," words of the first statute of 
 
 frauds of New York, construed, 402. 
 "no contract, etc., shall be valid," meaning of the words, 403. 
 distinction between the seventeenth and fourth sections, 403. 
 object of the legislature in adopting the statute, 403, 419. 
 efficacy of a contract under the statute, 419. 
 of the memorandum, 403, 406, 447. 
 
 Redesdale, Lord Chancellor, as to signing the memorandum, 422. 
 contract and memorandum, distinct, 404. 
 form of, 425. 
 
 example of a valid memorandum, 403, 408, 437. 
 essentials of, discussed, 440, 443, 447. 
 must be complete and show a conclusion, 403, 407, 408. 
 intention of the statute carried out, when, 447. 
 Virgin, J., on the subject, 403. 
 construction of the memorandum, 440. 
 must be intelligible in terms, 405, 417. 
 " price" must be stated, 225, 405. 
 law will fix price, when, 224. 
 but may be shown, when, 415. 
 "quantity" to be mentioned, 405. 
 " person," identity of, 405. 
 
 " average weight" intention as to in the sale of cotton, 469. 
 intention must be expressed, 405. 
 
INDEX. 573 
 
 MEMORANDUM IN WRITING — continued. 
 
 instance of a defective memorandum, 428. 
 
 " parties" must be shown in the memorandum, 406. 
 
 or description of the parties must be, 410. 
 
 time and place of delivery of goods to be stated, 407. 
 
 when they need not be stipulated for, 407. 
 
 contract not void by not stating time of delivery, 414. 
 
 need only be signed by party to be charged, 410, 421, 447, 450. 
 
 can he claim memorandum insufficient, 423. 
 
 the other party must be designated, 410, 423. 
 
 party signing is bound, 41 9. 
 
 memorandum presumed to contain all the requisites, 411. 
 
 must state the contract with reasonable certainty, 448. 
 
 case of Salmon Falls Manufacturing Company v. Goddard, ex- 
 ample of sufficient memorandum, 415. 
 
 case of Justice v. Lang, as to a memorandum, 440, 447. 
 
 contract can only be impeached by parties to it, 423. 
 
 statute contains no provision to relieve a party who has signed 
 the contract, 450. 
 
 can only be enforced against the party who has signed, 423a. 
 
 courts of equity will enforce such a contract, 450. 
 
 party who has signed is estopped from denying it, 425. 
 
 cannot set up the statute in bar, 421. 
 
 contract taken out of the statute, when, 426. 
 nonsuited, plaintiff will be, if he show memorandum incomplete, 
 423. 
 
 test as to whether the writing embodies the contract, 428. 
 
 example of an incomplete contract, 403, 408, 417. 
 
 essentials of the contract must appear, 443, 447. 
 
 printed bill of sale, sufficient when, 425. 
 
 example of, a contract for the sale of goods, 414, 443, 447. 
 
 statute proposes the probability of the signature of one party 
 only, 450. 
 
 question of compliance with the statute raised when memoran- 
 dum put in evidence, 446. 
 
 subsequent alteration of a contract, within the statute, 451. 
 
 contract must be gathered from the memorandum, 438, 447, 448. 
 effect of the party denying that the memorandum contains the con- 
 tract, 408. 
 memorandum, when to be made, 404, 446. 
 
 before action brought, 409. 
 
 time when made may be shown by parol, 420. 
 
 statute silent as to delivery of the memorandum, 424. 
 letters and documents may constitute a memorandum, 404, 446. 
 
 when letters make up a contract, 52, 126, 420, 428, 444. 
 
 example of, 432, 444. 
 
574 SALES. 
 
 MEMORANDUM IN WRITING — continued, 
 of documents, 425, 426. 
 
 letters may show a printed bill of sale to be sufficient, 425. 
 contract in different writings, 446. 
 rule as to mutual relation of the parties, 426. 
 a receipt subscribed sufficient, 427. 
 " unwarranted refinement" as to, not upheld, 427. 
 sufficient where a letter canceled a contract and referred to an in- 
 voice inclosed therein, 428. 
 " P. S.," initials in a letter, construed, 429. 
 
 Danforth, J., opinion of, as to the essentials of letters together con- 
 stituting a valid memorandum, 429. 
 " postcript " to be taken as part of a letter, 429. 
 price mentioned in the postscript, sufficient, 429. 
 signature intended to authenticate the writing, 429. 
 another example of a contract made up of letters, 430, 432, 446. 
 statute satisfied where contract proved by letters, when, 431, 482 
 where letters were held insufficient, 433. ) 
 
 when one document refers to another, deemed incorporated with it, 
 
 433. 
 instance of a contract resting upon sundry letters, 434. 
 a proposition by letter must be accepted, example, 434. 
 if a proposition by letter is modified by the other party, there is no 
 
 contract, 434. 
 case of counter proposition, 434. 
 offer to purchase, instance of, 438. 
 example of an offer and not a sale, 438, 439. 
 an offer lacks mutuality, 439. 
 
 bill and receipt, taken together, constitute a valid memorandum, 427. 
 what is a valid memorandum, 440. 
 " subscribed," statute of Colorado, 427, 474. 
 
 consideration need not be stipulated in the memorandum, 403, 407, 
 447. 
 consideration not destroyed because party who does not sign is 
 not liable thereon, 440. 
 Lott, J. , opinion of, on the subject, 440. 
 Ingalls, J. , opinion of, on the intention of the legislature as 
 
 to the memorandum in executory contracts, 440. 
 a promise void in law no consideration for the promise, 440. 
 presumptions of law in contracts, 440. 
 " agreement," consideration in, 401. 
 parol evidence as affecting the memorandum, 414, 425. 
 when parol proof allowed, 403. 
 to identity of person, 405. 
 
 not allowed to connect an unwritten paper with a written one, 
 462. 
 
index. 575 
 
 MEMORANDUM IN WRITING — continued. 
 
 cannot be resorted to, when, 405, 416, 443. 
 
 when introduced without objection, 402. 
 
 objection to parol proof must be taken before case closed, 402. 
 
 may be introduced when the memorandum is only in part in 
 
 writing, 408. 
 exception to rule that what was said when memorandum was 
 
 made will be disregarded, 411. 
 several writings may be connected by parol proof, 412, 426. 
 but see an opposite view on the subject, 433. 
 parol evidence may show that something to be done, not in- 
 cluded in the memorandum, is included in another paper, and 
 what it is, 412. 
 omissions in the memorandum may be supplied by, 414 
 cannot contradict the writing, 414, 436. 
 the law will fix a reasonable price, when, 449. 
 facts may be applied to the contract, 414. 
 place or time of delivery cannot be changed by parol, 451. 
 example, where parol evidence was admitted to explain an 
 
 omission and apply it to the contract made, 414. 
 parol evidence may be admitted to identify the subject-matter, 
 
 415. 
 " quality or degree," parol evidence not admissible as to, 415, 
 
 443. 
 "phrases and terms" may be explained, 415, 420. 
 " price," if not agreed upon, may be shown by parol, 415. 
 " quantity " cannot be increased over the memorandum by 
 
 parol, 416, 443. 
 nor can the quantity of the goods be shown, 443. 
 "situation of the parties," may be shown, 420. 
 and the circumstances generally, 420, 422. 
 and that the party sued is the person bound by the contract 
 
 435, n. 1. 
 trades, or relative business of the parties, may be shown, 420. 
 proof of a contract, and proof of a compliance with the statute, 
 
 when the question arises, 428, 446. 
 proof of facts inadmissible, when, 443. 
 compliance with the statute, how proved, 446. 
 contract partly written and partly oral will not satisfy the statute, 
 
 451. 
 if entry of auctioneer relied upon, it must refer to terms of sale, 428. 
 new contract cannot be substituted for the original one, 451. 
 written contract not to be enlarged by parol, 451. 
 parol evidence not admissible to show a different agreement, 419. 
 parol proof inadmissible to show that the defendant was in fact the 
 principal, 436. 
 
576 , SALES. 
 
 MEMORANDUM IN WRITING — continued. 
 
 where party who had the benefit was the principal, rule as to, 436. 
 principal liable where he has had the benefit under the contract, 
 
 435. 
 "bargain," word in the statute, 401. 
 
 Wald's Pollock on the subject of bargain, 401. 
 
 a bargain by parol is not enforceable, 404. 
 
 terms of, disregarded when, 411. 
 
 in case of verbal promise of plaintiff, and written promise of 
 defendant, 440. 
 " order," contract by, 406. 
 
 example of Doughty v. Manhattan Brass Company, 429. 
 
 "who is the person" who ordered the goods, may be shown, 
 435, n. 1. 
 
 when a feigned name is used in the contract or order, 435, n. 1. 
 
 order, whether an offer or a contract, 437, 438, 439. 
 
 case of Wemple v. Knopf, as to offer, 437. 
 
 order, where part of orders filled and security demanded, vendor 
 not liable for not filling rest of the orders, 444. 
 
 order, where goods are to be manufactured, 445. 
 
 not within the statute, contracts or orders to manufacture, 
 445. 
 
 writings connecting the contract may be shown, when, 446. 
 
 order, as to the validity of an order for goods, 449. 
 
 " we have canceled the order,'' effect of the words, 428. 
 "delivery of goods," where no time is fixed, 413. 
 
 reasonable time will be fixed, 413, 414. 
 
 surrounding circumstances will govern, 414. 
 
 custom will regulate, 413. 
 
 rule in Colorado, where the memorandum must be "sub- 
 scribed," 427. 
 
 when delivery not necessary, 427. 
 
 "delivered," word used in the Iowa statute, 397, n. 3. 
 
 the statute does not declare a contract void, 397, n. 3. 
 
 goods ready for delivery, statute applies, 397, n. 3. 
 delivery of the memorandum, 424. 
 
 not essential to its validity, 424. 
 
 contract corroborative, when, 424. 
 
 as to its delivery or non-delivery, 424. 
 
 signature, irregular place of, 427. 
 
 " across the face of the bill," effect of, 427. 
 agent, memorandum by, 97, 435, 438. 
 
 an agent may make a contract to bind his principal, 435. 
 
 statute satisfied if name of the principal does not appear, 435. 
 
 parol evidence may be used to show that A. simply made the 
 contract for B., as agent, 435. 
 
index. 577 
 
 MEMORANDUM IN WRITING — continued. 
 
 agent may be personally charged where he fails to disclose the 
 
 name of his principal, 435. 
 broker's memorandum of purchase, when binding, 498, 500. 
 a broker's clerk may sign for the broker, 435, n. 1. 
 parol evidence inadmissible to show that defendant was principal 
 where contract made by agent in his own name, instance of, 486. 
 distinctions drawn as to liability of agent who does not disclose the 
 
 name of his principal, 436. 
 vendor may elect to hold the agent who does not disclose the name 
 
 of his principal, when, 436. 
 purchase of goods through an agent, 448. 
 open account, goods bought by agent, 448. 
 contract corroborative, when, 424. 
 goods to arrive, purchase of by broker, 474. 
 his signature to the memorandum, 474. 
 jury, question for, as to memorandum, 440. 
 
 inferences of facts to be passed upon by, 440. 
 in executory contracts, 440. 
 " equivocal expressions," a question of fact, 440. 
 words and phrases, in contracts, 418. 
 
 " bought of," effect of the words, 418, 468, 479, n. 2. 
 " unilateral undertaking," opinion* as to, 440. 
 " same to be agreed upon," words in a memorandum, shows 
 something to be done in the future, contract in such case in- 
 complete, 443. 
 where vendee has failed to comply with terms, 444. 
 " sold," when the word is omitted before the firm-name in a bill 
 
 sold, 448. 
 "terms moderate," will satisfy the statute in an order, 449. 
 the price can be fixed, 449. 
 vendee bound in such case, 449. 
 
 "average weight" will be deemed intended, where bales of cot- 
 ton are sold without the weight being mentioned, 469. 
 "I, A. B., agree," statute satisfied where these words are used, 
 
 472. 
 "sold John Dodgson," words written in a book, and sigtfed by 
 
 the vendor, sufficient, 473. 
 "from Richard L. Crupps," where these words were printed it 
 
 was held sufficient, if recognized, 478. 
 initials, sufficient signing, 477. 
 memorandum signed in lead pencil, sufficient, 483. 
 mark, sufficient, 480, 482. 
 memorandum necessary in sale of a crop to be raised, seed is not yet 
 sown, 95. 
 in contract for hops growing, 159, 
 37 
 
578 SALES. 
 
 MEMORANDUM IN WRITING — continued, 
 in sale of furniture, 60. 
 
 not necessary in sale of growing crops, when, 163, 164, 212. 
 where contract is to cut timber, 186. 
 where A. sells standing trees on his land to B., and B. sells 
 
 the trees still standing to A., 188. 
 in sale of cord-wood, cut by seller, 179. 
 in sale of fixtures, 111. 
 in contract to manufacture, 99. 
 
 METCALF, J. 
 
 opinion of, as to pleading the statute of frauds, 583. 
 
 MISSOURI. 
 
 shares of stock decided to be within the statute, 145. 
 
 MORGAN, J. 
 
 opinion of, why hops maturing on vines are within the statute of 
 
 frauds, 161. 
 
 MORTON, C. J. 
 
 opinion of, as to license in vendee to enter upon land of vendor and 
 remove anything attached to the soil, 211. 
 
 NEW JERSEY. 
 
 rule of construction as to what contracts fall within the operation 
 of the statute of frauds, 34, 37. 
 
 NEW HAMPSHIRE. 
 
 "goods, wares, or merchandise," words of the statute of frauds, 
 
 147. 
 promissory notes held not within, 147. 
 
 NEVADA. 
 
 statute of, as to contracts by telegraph, 453. 
 
 NEW YORK AND OTHER STATES. 
 
 rule of construction of contracts, 39, 43. 
 
 illustration of the rule, 45. 
 
 principle of the decisions, 51. 
 
 shares of stock not within the statute of frauds, 141. 
 
 " goods, chattels and things in action," words of the statute, 147. 
 
 " at the time," words of the statute as applied to payment, 367, n. 2. 
 
 "memorandum" and "delivery," 367, n. 2. 
 
 as to assets, crops, etc., 159. 
 
 NINTH REPORT OF HISTORICAL MSS. COMMISSION. 
 
 declares Sir Leoline Jenkins to have prepared the sections of the 
 
 statute of frauds as to wills, 7. 
 and that Lord Nottingham was active in having the statute passed, 8. 
 (See Authorship of the Statute op Frauds,) 
 
index. 579 
 
 nottingham, lord chancellor. 
 
 origin of the statute of frauds not attributed to him, 8. 
 
 he drew certain sections of the statute, 8. 
 
 he brought the bill into the House of Lords, 8. 
 
 active in promoting the passage of the statute, 8. 
 
 ninth report of the Historical MSS. Commission says he did much to 
 
 promote the passage of the statute, 8. 
 his opinion in Ash v. Abdy, 8. 
 his idea of the meaning of the statute, 8. 
 considered the father of equity, 8, n. 4. 
 he worshiped Lord Hale, 8, n. 4. 
 
 ORAL CONTRACT. 
 
 oral contract for the sale of logs, 291. 
 
 to purchase a certain kind of goods not separated from other goods, 
 
 not sufficient to constitute delivery, 254. 
 example of oral agreement to deliver goods, void, 62. 
 (See Contracts Within and Contracts Without the Statute of 
 Frauds.) 
 
 OREGON. 
 
 statute of frauds of Oregon requires the consideration to be ex- 
 pressed in the agreement, 243. 
 statute of, as to contracts by telegraoh, 453. 
 
 PAIGE, J. 
 
 opinion of, on acceptance, 261. 
 
 upon the meaning of the word " subscribed," 468, 475. 
 
 on revision of the New York statute of frauds, 468. 
 
 PARK, J. 
 
 opinion of, as to what will amount to acts of acceptance, 266. 
 
 PARK, B., 
 
 opinion of, as to sale of growing crops, 160. 
 
 PARKER, C. J. 
 
 opinion of, on the place of contract. 608. 
 
 on the sufficiency of signature to the memorandum, 469. 
 
 PAROL PROOF. 
 
 contracts by parol, tvhen valid, 261. 
 
 what contracts for standing trees may be by, 191. 
 
 parol contract, whereby the owner of land is to cut and deliver 
 
 timber, is valid, 182. 
 Paige, J., opinion of, as to the validity of an unsealed contract to 
 
 convey pine timber, 196. 
 parol agreement to cut timber into cord-wood and deliver it is valid, 
 
 183. 
 
580 SAIjES. 
 
 PAROL PROOF — continued. 
 
 parol contract for property after severance from the soil, 153. 
 
 for a crop of hops, 159. 
 
 for grass already grown, 174. 
 
 for the sale of peaches at a specified price, 176. 
 
 conflict of authority, as to parol contracts for growing trees, 
 fruit or grass, with right in vendee to remove the same, being 
 within the statute, 172. 
 pai'ol contrast to pay for improvements on land* 114. 
 
 not taken out of the statute by delivering a bill containing 
 
 terms of sale, 307. 
 what will amount to possession of goods, 265, 269, 274. 
 place or time of delivery cannot be changed by parol, 451. 
 
 parol license to cut timber for a fixed price for stumpage, is 
 
 valid, 205. 
 license is not covered by the statute of frauds, 205. 
 parol license is revoked by death of the licensor, 208. i 
 
 agent, parol authority of, 487. 
 
 where he acts for one party, 487. 
 where he acts for both parties, 487. 
 parol proof inadmissible to show that defendant was principal, 
 
 when, 436. 
 (See Evidence.) 
 
 PART PAYMENT. 
 
 part payment is something beyond the contract, 3. 
 
 effect of, 16. 
 
 when earnest is given, 16. 
 
 must be made, 17. 
 
 (See Earnest and Part Payment.) 
 
 PARTY OR PARTIES. 
 
 the words, how construed, 464. 
 
 PERKINS, J. 
 
 opinion of, on delivery of goods to carrier, 349. 
 
 PERJURY. 
 
 statute of frauds aims to prevent perjury, 24. 
 
 early laws against, 13. 
 
 statute of frauds revived certain laws as to, 13. 
 
 legislature intended to guard against perjury, 144. 
 
 danger of, as great in sale of shares of stock as in goods, 145. 
 
 danger of, as great in auction sales, as in others, 18, 520. 
 
 (See Statute op Frauds.) 
 
 PIERPONT, J. 
 
 opinion of, as to contracts to cut and deliver trees in a changed con- 
 dition, 183. 
 
INDEX. 581 
 
 PLACE OF CONTRACT. 
 
 contract valid where made, valid everywhere, 603. 
 
 when does the place of contract govern, 85, 606. 
 
 lex loci, the nature, validity and construction of contracts gov- 
 erned by, 607. 
 
 as to remedies under a contract, 603. 
 
 when the lex loci governs, 606, 607. 
 
 Parker, C. J., opinion of, upon the lex loci, C08. 
 
 English rule as to place of contract, 609. 
 a rule of evidence, some statutes lay down, 603. 
 the contract void, by the statute of some states, 603. 
 statute of frauds of states declaring a rule of evidence, 603. 
 
 of statutes declaring the contract void, 603. 
 distinction under the statutes of the several states, 604. 
 Dwight, Professor, as to rule of place of contract, 604. 
 
 rule laid down by an author criticised, 605. 
 case of Mario v. Garrison on subject of lex loci, 604. 
 
 doctrine that place of contract and place of trial are to be satis- 
 fied, advanced by a writer on the statute of frauds, 605. 
 question discussed, 605. 
 
 memorandum and the contract, distinction between, 605. 
 the Massachusetts doctrine as to, 605. 
 "shall be void, unless," etc., rule adopted as to place of contract in 
 
 New Jersey, 606. 
 Dacosta v. Davis, as to application of the statute in sales out of the 
 state, and place of contract, 606. 
 
 oral contract made where the statute of frauds does not pre- 
 vail can be enforced in a state where the statute exists, 606. 
 
 as to the place of contract and remedies under it, 606. 
 
 rule as to enforcement of contracts, 607. 
 Story, J., as to remedies under contracts valid where made, 607. 
 where a contract is made with reference to another state or country 
 
 the intent will govern as to its validity, 607, 608. 
 the legal presumption as to place of contract, 608. 
 
 place of delivery, law of place of delivery will govern, when, 609. 
 the law as to the lex loci and lex fori, 609. 
 the lex fori governs as to limitation of actions, 607, 608. 
 
 agent, acts of in making a contract in another country, 609. 
 
 acts of the lawfully authorized agent governed by the same 
 rule as acts of principal, 609. 
 a small beacon may serve to light the lawyer in his profession, 609. 
 (See Lex Loci.) 
 
 PLEADING THE STATUTE OF FRAUDS. 
 a declaration at common law, 582, 599. 
 statute of frauds did not alter the rules of pleading, 582, 592, 599. 
 
582 SALES. 
 
 PLEADING THE STATUTE OF FRAUDS — continued, 
 rules of evidence changed by the statute, 582, 592, 599. 
 pleading the statute, 582, 584, 596, 597. 
 to be available, must be pleaded, 584, 586, 596. 
 the statute a personal defense, 583. 
 the party to the transaction only can plead it, 583. 
 Metcalf, J., opinion of, upon pleading the statute, 582. 
 
 the writing and not the allegation matter of proof, 582, 
 
 583. 
 pleading, bad on demurrer, when, 594. 
 as to an action for goods sold and delivered, 584, n. 5. 
 defendant denying the contract, effect of, 584. 
 where it appears in the complaint that the contract was in 
 
 writing, it is necessary to plead the statute, 243, 598, 599. 
 where it does not appear by the complaint that the contract was 
 in writing, it is not necessary to plead the statute of frauds, 
 584, 585, 589, 593. 
 when is it necessary to plead the statute, 243, 586, 598, 599. 
 Lake, J., opinion of, upon the subject, 583. 
 pleading, where the contract must have been in writing, 594, 
 
 599. 
 where contract presumed to be in writing, 588. 
 a general denial sufficient, when, 584, 597. 
 statute to be specially pleaded, 596. 
 rules of evidence where the statute is pleaded, 585. 
 case of Parker v. Wormser, action to recover a balance due on 
 
 sale of bonds, statute must be pleaded, 586. 
 statute not available to the plaintiff, when, 586. 
 no defense, when, 588. 
 defense of statute may be waived, 586. 
 
 where statute is pleaded it is necessary to prove that the con- 
 tract was in writing, 588. 
 Poland, J., opinion of, upon pleading the statute, 589. 
 pleading a special promise, 591. 
 case where general issue is pleaded, 591, n. 3. 
 Stone, A. W., J., opinion of, as to declaring upon the statute, 
 
 591. 
 sale admitted if not denied, 595. 
 '• statute has not changed the rule of pleading," meaning of the ex- 
 pression, 592, 599. 
 Worden, J., opinion of, upon the same subject, 592. 
 declaration, good when, 588, 592, 598. 
 complaint on a parol promise, when does it fail to state a cause of 
 
 action, 592. 
 statement of what facts sufficient, 592. 
 pleading the facts not necessary, when, 595. 
 
INDEX. 583 
 
 PLEADING THE STATUTE OF FRAUDS — continued, 
 not bound to plead the statute, when, 598. 
 
 contract presumed to be in writing, when, 588, 595. 
 not necessary to allege a contract to be in writing, 588. 
 presumption arises that no writing was signed, when, 593, 594, 
 
 595. 
 Busk irk, J., on pleading the statute, 594. 
 appeal in cases involving the. statute, 587, 596. 
 
 the statute as a plea or defense is not available on appeal unless 
 
 pleaded, 587, 596. 
 case of Johnson v. Latimer, involving defense of the statute on 
 
 appeal, 596. 
 no cause for reversing a judgment where part of a plea is 
 stricken out which did not harm the defendant, 600. 
 waiver of the statute, 590, 598, n. 1. 
 
 contract proved without objection, is valid, 590. 
 statute not waived by not being pleaded, 598. 
 case of Wentworth v. Wentworth, involving question of waiver 
 and pleading statute, 598. 
 demurrer, when is the declaration not demurrable, 584, 589. 
 when is the pleading subject to demurrer, 594, 595. 
 statute not available by demurrer, 584. 
 demurrer, code of Indiana, 594. 
 Dixon, J., on pleading in Robbins v. Deverill, 595. 
 where the answer admits the indebtedness, 595. 
 instance of a defective pleading, 598, 599. 
 case of Smith v. Auerbach, complaint materially de- 
 fective, when, 599. 
 pleading, where it alleges a written contract, the contract must 
 be filed, 594. 
 Spencer, J., on the statute and pleading, 603. 
 in case of goods bought by sample, 314. 
 
 nonsuit may be submitted to where no set-off is pleaded, 
 601. 
 or before the jury return a verdict, 601. 
 or before the court makes decision, 601. 
 non-readiness to pay no ground for, 602. 
 "readiness to pay " must be alleged, 602. 
 
 proof of readiness to pay, necessary, 602. 
 actual proof of, need not be given at the trial, 602. 
 averment of purchaser, in case he sues for nondelivery, 
 must be a willingness to pay, 602. 
 license, may be pleaded without dead, 200. 
 of the defense to a license, 209, 210. 
 
 POLAND, J. 
 
 opinion of, on pleading the statute of frauds, 589. 
 
584 SALES. 
 
 POLLOCK, C. B. 
 
 rule of, as to construction of contracts, 32. 
 as to when Lord Tenterden's act applies. 32. 
 
 POLLOCK, J. 
 
 opinion of, on the effect of the statute of frauds, 400. 
 
 POSTSCRIPT. 
 
 a postscript is part of a letter, 429. 
 
 even if not signed, 429. 
 
 Danforth, J., on the meaning and effect of a postscript, 429. 
 
 " P. S." in a letter, construction of, 429. 
 
 (See Memorandum in Writing.) 
 
 PRICE OR AMOUNT. 
 
 must be in money, 26, 218. 
 
 a reference to the bible, 26. 
 
 amount or price in contracts of sale, 217, 507. 
 
 price under the common law, 283. 
 
 by the civil law, language of the Institutes, 217. 
 
 price required to be fixed, 217, 221. 
 
 price, when to be paid, 299, n. 1. 
 
 statute of frauds, price or amount under, 217, 232. 
 
 certainty of price necessary, 218 
 
 may be implied, 218. 
 
 as to reasonable price, 218. 
 no contract until price is settled, 218. 
 when deemed settled, 218, 331. 
 must be stated in contract, 218. 
 implies cash down or credit, 218, 232. 
 
 when no price is fixed, 218. 
 
 reasonable price, when to be averred, 218. 
 
 demurrer lies if price not averred, 218. 
 " price of ten pounds sterling," words of the English statute, 219. 
 " value of ten pounds," words of Lord Tenterden's act, 219. 
 under the cases, value, stands in place of "price," 219. 
 the statutes are to be read together, 219. 
 Lord Tenterden's act removed all doubts as to executory contracts 
 
 falling within the operation of the statute, 219. 
 it removed doubts as to meaning of section seventeen, 219. 
 
 statute of frauds of the states as to price or amount, 220. 
 
 "for the price of," words of some statutes, 220, 226, 227. 
 
 " to the amount of," words of the Georgia statute, 220. 
 
 " price not less than," words in the statute of Oregon, 220. 
 
 " thirty dollars or more," in the statute of Maine, 220. 
 
 no mention of price or amount in the statute of frauds of some 
 states, 220. 
 
INDEX. 585 
 
 PRICE OR AMOUNT — continued. 
 
 price or amount named in the statute of Arkansas, California, 
 Colorado and eighteen other states, 220, n. 3. 
 
 " sale of personal property," words of the Connecticut statute, 
 220, n. 3. 
 
 price must be in money or an obligation to pay, 221, 225. 
 payment of part of price binds the contract, 221. 
 vendee may recover the goods, and vendor the price, in such case, 
 221. 
 
 jury may fix the price, when, 222, 223, 231. 
 
 when price is not mentioned, .222, 227. 
 
 when there is a mistake as to price, 231. 
 
 may fix the amount, when, 222. 
 
 " to the amount of," where statute so reads jury may deter- 
 mine, 222. 
 
 reasonable price, jury to fix, 234. 
 
 "for the price of," where statute so reads, and no price is 
 stated in the contract although stipulated for, jury cannot 
 pass upon amount, 222, 226. 
 
 contract not enforceable, when price is not stated in the writ- 
 ing, 222, 225, 226, 228, 230, 454. 
 
 where price was agreed upon, 225, 227. 
 
 price, if not expressly agreed upon, may be determined by 
 parol proof, 222, 223, 224, 415. 
 
 law will determine price, 224, 234. 
 
 the actual value may so be shown, 222, 227. 
 
 "reasonable price," when, 222, 227, 233. 
 
 " reasonably worth," as applied to price, 224. 
 
 " moderate terms," goods to be so shipped, satisfies the statute, 
 223, 234, 449. 
 
 jury may fix terms in such a case, 223, 234, 449. 
 
 fixed by some proper standard, 227. 
 
 " shipping price at '' a given place, not sufficient to satisfy the 
 statute, 223, n. 1, 449. 
 quantity, variance as to, fatal to contract, 223, n. 4, 229, 230. 
 or when quantity not mentioned, 229. 
 
 price,unless the statute provides that it need not be stated, con- 
 tract defective without stating it, 225, 227, 229. 
 
 oral evidence cannot supply deficiency, 225. 
 
 memorandum not defective when contract is executory, 82, 170, 
 225, 227. 
 
 parol evidence admissible in cases of contracts not within the 
 statute, 225, n. 2. 
 
 not admissible to vary written contract, 228. 
 
 Campbell, J., opinion of, on the subject of price, 227, 228. 
 
586 SALES. 
 
 PRICE OR AMOUNT — continued. 
 
 quantum valebat, recovery cannot be had in, where contract is 
 silent as to price, and there is parol evidence as to the price, 
 227. 
 writing as necessary for a reasonable price as any other, 227. 
 indebitatus assumpsit cannot be maintained, -when, 229. 
 special action on the case, when, 229. 
 
 delivery is defective where something remains to be done to 
 ascertain price or quantity, 230, 230, n. 1. 
 where property is destroyed, rule as to quantity and price, 230. 
 " stoppage in transitu," when a question, 230. 
 
 intention of the parties must show a complete sale to satisfy 
 
 the statute, 230. 
 mistake as to price, may be passed upon by the jury, 231. 
 where ignorance of the language is shown, 231. 
 valuers, when price to be fixed by, 232. 
 constitutes a part of the contract, 232. 
 " reasonable price," when contract is for, 233, 234. 
 value and market price, difference as to, 233. 
 "market price " deemed a proper evidence of value, 233. 
 not a legal presumption of fact of value, 233. 
 market price is made by " buying and selling," 233. 
 " moderate price," meaning of, 234. 
 statute applies where several purchases are made at a given sale, if 
 they amount in the aggregate to more than the price or amount 
 named in the statute, 235. 
 case of successive lots purchased at a sale, 235. 
 construction of such contract, 235. 
 
 another example, where successive purchases were made, 236. 
 Abbott, C. J., opinion of, on successive sales, 236. 
 statute must be complied with where successive purchases amount 
 
 to more than the sum mentioned in the statute, 236. 
 "except the buyer shall accept part of the goods sold," rule as to 
 
 clause of the statute, 236. 
 another example of successive purchases at a sale, 236, n. 1. 
 where payment is made by purchaser, 237. 
 rule and exception where different lots are purchased at an auction, 
 
 237. 
 where successive lots are bought at auction to be paid for on deliv- 
 ery, and part of the goods have been paid for and taken away, 
 rule, 237. 
 price, for flax straw to be raised, 63. 
 for barley to be raised, 166. 
 PRIM, C. J. 
 
 opinion of, as to consideration in the agreement, 243. 
 
INDEX. 587 
 
 PROPERTY. 
 
 passing of, wheve nothing is said about delivery, 17. 
 See Work and Labor; Contracts Within the Statute; Con- 
 tracts Without the Statute.) 
 
 RAPALLO, J. 
 
 opinion of, upon acceptance under the statute of frauds, 292. 
 
 RECEIPT, ACTUAL, AND DELIVERY OF GOODS, 
 delivery and receipt at common law, 283. 
 essentials of a sale at common law, 283. 
 delivery correlative of receipt, 283, 286, 287. 
 " actual receipt " under the statute of frauds, 283, 284, 286. 
 what will constitute actual receipt, 113, 277, 283. 285. 
 language of the statute unequivocal, 249, 283, n. 2. 
 " delivery " not used in the statute, 286. 
 
 receipt not complete without acceptance, 239, 250, 252, 283, n. 2. 
 example of, 276. 
 necessary in a work of art, 122. 
 delivery, Dwight, C, opinion of, as to delivery, 269. 
 
 in executory contracts, 61, 80, 122, 262, 264, 286, 290. 
 
 what will amount to, 300, 331. 
 
 part of goods manufactured, case within the statute, 41, 52, 58, 
 62. 
 
 special agreement as to delivery, 47, 76, 80, 277, 284, 291. 
 
 delivery of goods with slight alteration, 70, 296. 
 
 time of delivery governs, when, 51, 76. 
 
 place of delivery, 302. 
 
 goods made, to be paid for on delivery, if destroyed by Are be- 
 fore notice of their completion, loss falls on vendor, 105. 
 
 when delivery and payment are to be simultaneous acts, 45, 99, 
 305. 
 
 goods sold by weight and measure, effect of, 299. 
 
 crop of corn, how delivered. 163. 
 
 delivery validates a contract, when, 61, 276, n. 2, 287, 303. 
 
 option of vendee necessary, 251. 
 
 oral agreement to deliver, void, 62, 254, 291. 
 
 when goods placed in possession of buyer, 113. 
 
 delivery, goods must be separated for identification, 299. 
 
 delivery, article must be in condition for, at time of the sale, 
 when, 74. 
 
 different phases of delivery, 286, 295. 
 
 as to future delivery of goods in existence, 44. 
 
 delivery of goods to bailee, 300. 
 
 " delivered," word used in Iowa statute in place of acceptance, 
 245, n. 7, 397, n. 5. 
 
 circumstances tantamount to delivery controlling, 306. 
 
588 SALES. 
 
 RECEIPT, ACTUAL, AND DELIVERY OF GOODS — continued. 
 
 delivery must be according to circumstances, 254, 284, 293. 
 
 indicates transferring title, 286, 287. 
 receipt, definition of, 246, 284, 287. 
 
 goods may be received and not accepted, 249. 
 
 may be for special purpose, 259, 284. 
 
 distinction between acceptance and. 246. 
 
 English rule as to, 285. 
 
 acceptance and receipt necessary to take case out of the statute, 
 240. 
 
 receipt by one of several joint purchasers, valid, 285. 
 
 intention governs, when, 285, 236, 287, 307. 
 
 where vendee is deprived of his option to receive, 251. 
 
 possession must be unequivocal, 286, 308. 
 
 qualified delivery not sufficient, 307. 
 
 concurrent possession not admissible, 286. 
 
 when may receipt occur, 287, 295. 
 
 "unless the purchaser shall receive," reads the Indiana statute. 
 287. 
 
 requirements of, 287. 
 
 receipt must be with intent, 287, 308. 
 
 evidence of, 253, 331. 
 
 receipt of part of goods satisfies the statute, 287 293, 296. 
 
 when it does not bind vendee, 258. 
 part delivery and acceptance, 287, 288, 294, 300. 
 part delivery, effect of, 290, 585. 
 Hawley, C. J., on change of possession, 2S3. 
 what will overthrow the evidence of, 283. 
 evils of not enforcing the statute, 288. 
 
 the statute a wise measure, 305. 
 
 delivery as soon as practicable, terms of sale, 289. 
 
 contract for the sale of a " band of cattle and horses," 289, 305. 
 
 Boise, J., opinion of, in construction of the statute as to deliv- 
 ery, 289. 
 
 elements of a binding contract, 289. 
 
 case of Kerhof v. Atlas Paper Company on delivery, 290. 
 
 " dead wood," contract for, and part payment, 290. 
 " accept and receive," reads the Wisconsin statute, 290. 
 memorandum dispensed with, when, 290. 
 delivery and acceptance under a sale by a broker, 499. 
 " at the time," payment must be made, 290, 293. 
 
 bailee, delivery of goods to, 300. 
 
 oral contract for the sale of logs, statute applies, 291, 305. 
 
 case of Hanson v. Roter, delivery does not pass title before ac- 
 ceptance, when, 291, 292, 293. 
 
 offer to deliver goods, what sufficient, 299. 
 
INDEX. 589 
 
 RECEIPT, ACTUAL, AND DELIVERY OF GOODS — continued, 
 where chattels are to be delivered at a sta'ted place, 291. 
 contract in writing enforceable, when, 292. 
 where the contract is oral, 312. 
 case of Caulkins v. Hellman, 292. 
 
 when delivery will take case out of the statute, 292, 294, 312. 
 res gestce, what is part of, 292. 
 receipt may be subsequent to agreement, 295. 
 when damages will lie for failure to deliver, 293, 294, 295. 
 Earl, J., opinion of, as to a delivery to answer requirements of 
 
 the statute, 293, 299, 306, 308. 
 goods must be set apart to constitute delivery, 299. 
 where delivery is to be made at different times, 294. 
 modification of an agreement to deliver, 296. 
 " accept a part," words of the Arkansas statute, 294. 
 oontract entire, delivery of part will validate contract, 294, 295, 296, 
 
 585. 
 exception to the rule where vendee waives agreement to deliver en- 
 tire purchase at one time, 297. 
 vendee has not received goods where vendor retains a lien on them, 
 
 249. 
 vendee liable for price when he receives part of goods under an 
 
 order on warehouseman, 298. 
 goods must be susceptible of identification, 299. 
 case of goods sold by number, weight, or measure, 299, 306. 
 conditions, until complied with, goods are at risk of the vendor, 299, 
 
 306. 
 delivery, where a portion of lumber sold and delivered is bought 
 back by the vendor, 301. 
 when does title pass, 301. 
 a resale is within the statute, 301. 
 bailee, delivery of goods to, 300. 
 place of delivery, burden of proof upon vendee to show place other 
 than vendor's store or factory, 302. 
 rule, though the seller has not the goods on hand at the time, 
 
 302. 
 legal presumption as to place of delivery, 302. 
 vendor's place of business, 302. 
 contract validated, when, 303. 
 
 Lyon, J., opinion of, as to delivery to pass title, 303, 307. 
 goods delivered at a place designated, 303. 
 under an oral contract, 303, 305. 
 
 shipment of goods under verbal order at risk of vendor, 312. 
 vendee liable in such case, when, 312. 
 payment tantamount to, 304. 
 title has passed when property is paid for, 304. 
 
590 SALES. 
 
 RECEIPT, ACTUAL, AND DELIVERY OF GOODS — continued, 
 seizure of the property under execution, void, 304. 
 bill of goods sent not equivalent to delivery, 307. 
 marking goods not, 307. 
 parol contract, where nothing is paid, 305, 306, 307. 
 
 Ryland, J., opinion of, upon delivery and the statute, 305. 
 
 statute contemplates acts, 305. 
 
 goods marked with consent of vendee not a delivery, 307. 
 
 words insufficient, 305, 306. 
 
 Kent, C. J., opinion of, upon delivery, 306. 
 
 where something is to be done before delivery, 306. 
 
 if property destroyed before conditions performed, loss falls on 
 
 the vendor, 306. 
 circumstances tantamount to delivery, when, 306, 308, 331. 
 
 REDESDALE, L. C. 
 
 opinion of, as to requiring both parties to sign the memorandum, 
 422. 
 
 ROMAN LAW. 
 
 as to written evidence, 13, n. 2. 
 earnest under the Roman law, 359. 
 
 RYAN, C. J. 
 
 opinion of, as to contracts of sale for standing trees, 195. 
 
 RYLAND, J. 
 
 opinion of, on delivery and acceptance of goods, 305. 
 on the statute of frauds, 305. 
 
 SALE. 
 
 meaning of the word sale, 46. 
 
 Mr. Benjamin's opinion of a sale, 73. 
 
 case of Towers v. Osborne considered right, 77. 
 
 Lord Loughborough's opinion of the case, 77. 
 
 "sale," great stress laid upon the word, 51. 
 
 a test, between a sale and work and labor, 104. 
 
 distinction between, 30, 46, 65, 66. 
 
 instance of a sale, 36, 63. 
 
 statute respects a sale, 46. 
 
 where labor is an incident to, 32, 44. 
 
 Story, J., opinion of, as to a sale, 32. 
 
 flour purchased of a miller, a sale, 86. 
 
 " artificial teeth," contract for, 88. 
 
 contract for " malt," whether a sale, 58. 
 
 instance of a peculiar contract, 73. 
 
 simple sale without writing, 45. 
 
 English doctrine of sale, 46, 73. 
 
INDEX. 591 
 
 SALE — continued. 
 
 common sense and custom regulate human transactions, 27. 
 case in supreme court of the United States, 71. 
 sale of opera tickets, statute does not affect, 132. 
 not a sale of an interest in land, 182. 
 
 damages may be recovered where a party is deprived of seats at an 
 opera purchased, 132. 
 
 SALE AND RESALE. 
 
 where A. sells trees standing on his land to B., and B. sells such trees 
 as are not removed and still standing to A., 188. 
 
 (See Timber and Trees Growing ; Contracts Within and Con- 
 tracts Without the Statute.) 
 
 how far the act of reselling goods purchased by sample will amount 
 to acceptance, 317. 
 
 (See Sample, Goods Sold by.) 
 
 SAMPLE, GOODS SOLD BY. 
 
 elements in sale by sample, 310, 312. 
 
 as a specimen of the goods, 309, 311. 
 
 when accepted as part of the bulk, 309, 311. 
 
 vendee must pronounce goods satisfactory, 309. 
 
 case of Remick v. Sandford as to test of acceptance in such cases, 
 
 310. 
 Devens, J. , opinion of, as to validity of sale of goods by sample, 310. 
 acceptance may satisfy tfee statute, and yet evidence be admit- 
 ted as to terms of the contract, 310, 321. 
 as to option to reject goods, 315. 
 buyer may accept and yet reject goods if not equal to sample, 
 
 310, 321, 325. 
 in case of warranty, 310. 
 intention, an element in sales, 310. 
 barley sold by sample, case of, 325. 
 "cotton " sold by sample, 331. 
 order on warehouseman a delivery, 331. 
 sample or order, purchase by, vendee has right to ascertain 
 
 whether goods correspond with, 258, 325. 
 custom of trade in sale by, 325. 
 mere delivery of sample, in absence of a custom, will not amount 
 
 to an acceptance of part, 311, n. 1. 
 after goods are bought, a delivery of a sample from the bulk is 
 
 a part delivery, 311, n. 1. 
 "grain," bought by sample, case of Taylor v. Mueller, 312. 
 order on warehouse keeper, 312, 314. 
 
 delivery order issued and followed by inspection of the goods, 
 and rejection, does not make an acceptance, 312. 
 
592 SALES. 
 
 SAMPLE, GOODS SOLD BY — continued. 
 
 •'void, " contracts are declared, by Wisconsin statute, unless, etc., 
 
 313. 
 where goods do not correspond with sample proof of actual accept- 
 ance necessary, 313. 
 case involving question of, 314. 
 where bulk is equal to sample, and vendee has exercised acts of 
 
 ownership over the goods, 314. 
 delay in rejecting contract in sale by sample, effect of, 314. 
 evidence of such delay, 314. 
 evidence of delivery and acceptance within exception of statute, 
 
 314. 
 statute does not affect, when, 314. 
 
 effect of entry of goods in warehouse keeper's books, 314. 
 rescission and sale, what, 314. 
 acceptance follows acts of seller, 316. 
 may precede delivery, 316. 
 English rule as to sales by sample, 317, 319. 
 as to acceptance in, 322. 
 
 where goods are bought by sample and resold before delivery, 
 317, 324. 
 important case of Morton v. Tibbett, 317. 
 where goods are equal to sample, 317. 
 when not equal to sample, 317. 
 
 acceptance declared where goods are resold by purchaser be- 
 fore delivery, 317. 
 but rejected on account of short weight, 317. 
 rule of acceptance in given cases, 317. 
 
 acceptance to let in parol evidence, different from the accept- 
 ance in fulfillment of contract, 317, 319. 
 Campbell, Lord, opinion of, upon the subject of acceptance on 
 
 sale of goods by sample, 317. 
 compliance with contract, evidence as to, 317. 
 evidence sufficient to justify jury in finding acceptance, dis- 
 tinction drawn, 317, 319. 
 circumstance of reselling goods purchased by parol, 317. 
 acceptance of the part delivered, effect of, 317. 
 a sub-sale per se is not sufficient to constitute acceptance, 317. 
 rule laid down in a noted case, questioned, 318, 321. 
 part acceptance must be equivalent to part performance, 318. 
 acceptance means no right to reject the part accepted, 318. 
 does not preclude objection to quality or quantity, 318, 319, 321. 
 agreement that bulk shall be equal to sample, 319. 
 case of Kibble v. Gough, 319. 
 
 " not equal to sample," effect of receipt given for barley in 
 those words, 319, 324. 
 
INDEX. 093 
 
 SAMPLE, GOODS SOLD BY — continued. 
 
 when an acceptance notwithstanding notice, 319. 
 where jury find bulk equal to sample, 319. 
 sufficient evidence in such case, 319. 
 
 Bramwell, L. J., opinion of, upon acceptance of goods sold by- 
 sample and right of objection to such goods, 319. 
 acceptance must recognize the contract, 319, 333. 
 case of Morton v. Tibbett discussed, 319. 
 
 where goods are dealt with and still the right of rejection ex- 
 ists, 319. 
 case of Page v. Morgan, where, under a verbal agreement, goods 
 were sent to the mill of vendee and there pronounced " unequal 
 to sample," but jury found an acceptance, 330. 
 Brett, M. E. , opinion of, upon the legal effect of vendee receiving 
 and examining goods sold by sample, 330. 
 what acts amount to an admission of the making of the con- 
 tract, 320, 333. 
 acceptance, examination of a portion of goods sent to see if they 
 
 correspond with sample, held to be, 330. 
 a delivery but not an acceptance, when, 330. 
 jury justified in finding acceptance, when, 330. 
 cases of Morton v. Tibbett, and Kibble v. Gough, discussed and criti- 
 cised, 331. 
 acceptance of goods sold by sample may satisfy the statute and yet 
 
 not preclude the vendee from rejecting the goods, 331. 
 where jury find goods not equal to sample, 331, 334. 
 effect of such verdict, 334. 
 
 where they find bulk equal to sample, rule, 331. 
 Baggallay, L. J., opinion of, as to acceptance of goods sold by sam- 
 ple, 331. 
 Bo wen, L. J., opinion of, on the same subject, 331. 
 
 discussion of the question where the buyer deals with the goods 
 
 as to recognize the existence of a contract, 331, 333. 
 case of Eickard v. Moore, acceptance on a " secondary point," 
 331. 
 no acceptance where the purchaser refuses to allow goods bought 
 
 by sample to remain on his premises, 333. 
 is notice of rejection equivalent to a refusal to permit goods sent to 
 
 remain on vendee's premises, 333. 
 res gestce, notice of rejection of goods, a part of, 332. 
 
 that bulk shall be equal to sample is implied, when, 322. 
 
 a violation of sound commercial usage and the spirit of the 
 
 statute, 332. 
 is an admission of the making of a contract equivalent to ac- 
 ceptance, 332. 
 38 
 
594 SALES. 
 
 SAMPLE, GOODS SOLD BY — continued. 
 
 by the adoption of such a rule in regard to part payment many 
 cases would be overthrown, 322. 
 Blackburn, J., opinion of, upon what will amount to acceptance, 
 323. 
 reasons for non-acceptance immaterial, 323. 
 question is whether vendee has accepted, 323. 
 wool sold by sample and delivered' at railway station, effect of, 324. 
 immediately notice given that bulk does not correspond with sam- 
 ple, effect of, 324. 
 overt act required where contract is verbal, 324. 
 cases where goods are found equal to sample, distinguished, 324. 
 
 SANDEESON, J. 
 
 opinion of, as to a sale of growing crops being affected by the stat- 
 ute of frauds, 163. 
 
 SHAW, C. J. 
 
 opinion of, as to shares of stock being embraced within the statute 
 
 of frauds, 144. 
 on contracts of sale, 31. 
 
 as to note or memorandum of auctioneer, 576. 
 as to auction sales generally, 575. 
 
 SHEPPAED'S TOUCHSTONE. 
 
 authorship of the Touchstone, 16, n. 1. 
 
 Justice Doderidge the author, 16, n. 1. 
 edited by Edward Hilliard, 16, n. 1. 
 
 illustration from, as to the common law doctrine of con- 
 tracts, 16. 
 
 SIGNATUEE. 
 
 " signed," meaning of, 474. 
 
 " subscribed," meaning of, 465, 474. 
 
 signed; when used in the statute of frauds, it is sufficient, if 
 signature appear anywhere in the memorandum, 464, 469. 
 immaterial where signature appears, 465, 470. 
 immaterial as to form of signature, 479. 
 decisions of New York before the statute was amended, 
 
 substituting word " subscribed " for " signed," 465. 
 intention of the legislature, 467, 468, 475. 
 signature not required to be literal or formal, 467. 
 signing does not mean subscribed, 467. 
 large license formerly taken in the decisions, 467. 
 " signed," used in the Massachusetts statute, 469, 
 example of sufficiency of, 469, 471. 
 Kent, Chancellor, on the sufficiency of, 470. 
 
INDEX. 095 
 
 SIGNATURE — continued. 
 
 of signature with pencil, 483. 
 
 before the statute of New York was amended, any mention 
 
 of the name sufficient, 467, 470. 
 "bottom or top," or in the body of the writing, 469, 471. 
 law looks to the substance and not the form, 471, 473, 480. 
 form of signature immaterial, 479. 
 a " substantial signing," sufficient in some states, 465, 466, 
 
 479. 
 English cases as to place of signature, 465. 
 intention of parties, where signature does not appear at the end, 
 
 466. 
 intention, when it can be inferred, governs as to validity of 
 
 memorandum, 470. 
 intention must be gathered from the writing, 464. 
 " signing," imports an informal writing, 482. 
 "subscribed," when the word is used in the statute in relation to 
 the sale of goods, etc., the signature must appear at the end 
 of the memorandum, 464, 405, 479. 
 "subscribed" substituted for word "signed," 465, 407, 468. 
 word " subscribed " clearly defined in meaning, 468. 
 strict construction given to it, 464, 465. 
 case of James i\ Patten, on subscription of the memorandum, 468. 
 Paige, J., on the revision of the statute as to signature, 468. 
 "subscribed," word also used in the statute of Colorado, 427. 
 bottom or end of the contract, signature must be where the word 
 " subscribed " is used, 474. 
 subject of signature elaborately discussed in Davis v. Shields, 
 474. 
 Walworth, Chancellor, opinion of, upon the requirements of the 
 statute as to place of signature, where the word " subscribed " is 
 used, 474. 
 Verplanck, Senator, on the same subject, 474. 
 
 statute not satisfied by a bare subscription in the body of the mem- 
 orandum, 474, 476. 
 example of, 476. 
 
 mistake of judgment of Senator Paige as to meaning of word "sub- 
 scribed," 475. 
 " popular meaning " intended by the legislature, 475. 
 statute cannot be circumvented, 476. 
 rule of construction of the statute as to signature, 476. 
 jury to determine the question of intention of the parties where 
 
 signature appears in the body of the memorandum, 466, 473. 
 " party or parties," signature of, 465. 
 parties must assent to the contract, 474. 
 both parties need not sign, 474. 
 
596 SALES. 
 
 SIGNATURE — continued. 
 
 signature of party to be bound, sufficient, 432, 433, 433a, 447. 
 "postscript," signed or unsigned, is a part of a letter or memoran- 
 dum, 429. 
 " P. S." in a letter, construed by Danforth, J., 439. 
 broker's memorandum sufficient, when, 474. 
 purchase of goods to arrive, contract by broker, 474. 
 signature of the agent is the signature of the principal, when, 
 
 473, 489. 
 signature of a'broker in his book, effect of, 496. 
 what is a sufficient signing, 471, 478, 491. 
 
 bill of parcels, written under the direction of the vendor, suffi- 
 cient, 471, 491. 
 "I, A. B., agree," words held to be sufficient, 473. 
 words in a book, "sold John Dodgson,'' and signed by the 
 
 seller, satisfies the statute, 473. 
 "initials," signature by, sufficient, 477. 
 
 where initials only appear in the memorandum, it must be 
 made to appear that it was so written with the intention to be 
 binding, 477. 
 printed signature, sufficient, 478, 479. 
 
 " From Richard L. Crupps," words printed, sufficient when rec- 
 ognized as valid, 478. 
 printing is writing, within the meaning of the statute, 483. 
 habit of party signing may govern as to validity of signature, 
 
 479. 
 sealing without signing, effect of, 479. 
 a " mark " is sufficient if intended to confirm the contract, 480, 
 
 483. 
 writing will prevail over printed matter in case of conflict be- 
 tween them, 481. 
 what is not a sufficient signing, 471. 
 
 "your affectionate mother,'' a letter so signed, is insufficient 
 to satisfy the statute, 471. 
 materials used in signing, 480, 482, 483. 
 pencil or ink, sufficient, 480. 
 stencil or stamp, sufficient, 480. 
 statute of frauds is silent as to materials to be used in writing 
 
 signature, 482, 484. 
 materials used governed by usage, 483. 
 lead pencil mostly used and is sufficient, 483. 
 manner of impressing letters, no part of the definition of writ- 
 ing, 484. 
 various materials have been used in writing in the different 
 
 ages, 484. 
 "stones" have been used, 484. 
 
INDEX. 597 
 
 SIGNATURE —continued. 
 
 " metals " have been, 484. 
 
 " bark and leaves " have been, 484. 
 
 calamus or reed, as an instrument in writing, 484. 
 
 styles of iron, or bone, and reeds and quills, have been used in 
 
 writing, 484. 
 Job, writing in the time of, 484. 
 
 SOUTH CAROLINA. 
 
 statute of frauds of, same as the English statute, 69. 
 
 SPENCER, J. 
 
 opinion of, on the meaning of the statute of frauds, 602. 
 
 SPRAGUE, J. 
 
 opinion of, as to contracts of sale of an interest in growing crops, 
 162. 
 
 STATES. 
 
 Lord Tenterden's act, declaratory of the statute of frauds in certain 
 states, 25, n. 1. 
 some courts guided by English precedents, 42, 115. 
 section 17, substantially in some states, 74. 
 statute of frauds of the several states and territories in relation to 
 sales of goods, wares and merchandise, chattels and things in ac- 
 tion, and personal property generally, Appendix I. 
 
 STATUTE OF FRAUDS. 
 
 history of the statute of frauds, 2. 
 preamble of, 2. 
 when passed, 2. 
 
 the product of several judicial minds, 5. 
 
 has several progenitors, 6. 
 
 received the sanction of the bench, 6. 
 
 introduced into Parliament long before its passage, 6, n. 3. 
 
 when first introduced, 9. 
 
 long time in preparation, 7, 9. 
 sections in relation to wills, prepared by Sir Leoline Jenkins, 7. 
 sections as to trusts and devises by Lord Nottingham, 8. 
 he promoted its passage through Parliament, 8. 
 
 statute referred to several committees, 9. 
 
 returned to the House of Lords, 9. 
 
 receives the royal assent, 9. 
 
 goes into operation, 9, n. 1. 
 
 intended to prevent mistakes and perjury, 3. 
 draws the line of demarcation between negotiation and contract, 3. 
 what changes were wrought by, 24. 
 no change wrought as to the sale of growing crops, 154, 177. 
 
598 SALES. 
 
 STATUTE OF FRAUDS — continued. 
 
 acts required to show the completion of a contract, 3. 
 the statute a safeguard in business dealings, 4. 
 as to perjury and mistakes, 24. 
 
 does not declare a contract void, 4. 
 
 prescribes a new rule of evidence, 4, 24, 29. 
 
 when is an oral contract established, 4. 
 encomiums upon the statute, 2, 305. 
 early objections to, 11. 
 various criticisms upon, 10, 121. 
 objections of Mr. Justice Stephen, 10. 
 inartificially drawn, 10, 11. 
 
 many criticisms unfounded, 11, 121. 
 
 Lord Kenyon's opinion of the statute, 11. 
 
 Abbott, C. J., opinion of, 11. 
 
 it settled many legal principles, 12. 
 a meritorious law, 11. 
 checks reckless litigation, 11. 
 prevents uncertainty in contracts, 84. 
 embarrassment of the judges in its early history, 12. 
 early constructions of the statute, 12, 42, 46. 75. 
 modern interpretations of, 12, 21, 75. 
 statute strictly construed, 42, 74, 75. 
 
 relates to matters of ordinary business, 12. 
 
 lightens the burdens of courts, 12. 
 whether the statute is productive of good, questioned in a Minnesota 
 
 case, 121. 
 statute revived certain laws as to perjury, 13. 
 early laws against perjury, 13. 
 well adapted to the times, 13. 
 a protection against fraud, 133, 305. 
 
 gives no new efficacy to written contracts, 13. 
 
 requires more than oral evidence, 13. 
 
 evidence of the contract must be in writing, 409. 
 words of the English statute, 25, 219. 
 stamp act of 23 Geo. 3, reference to, 161. 
 Lord Tenterden's act, in connection with the statute, 4. 
 "value" for "price," substitution of word, 25. 
 
 extensive litigations occasioned by the statute, 8. 
 
 refined and artificial distinctions, the cause, 45. 
 
 Chancellor Kent and others on cost of litigations, 8. 
 
 statute reasonably construed, 21, 75, 86. 
 a liberal construction commended, 75. 
 contemplation of the parties governs, 95. 
 Lord Tenterden's opinion as to. 21, 121. 
 a rule of construction, 121. 
 
INDEX. 599 
 
 STATUTE OF FRAUDS — continued, 
 rejected refined distinctions, 21, 23. 
 
 jurisprudence can only contain near approximations of equity, 
 12, 121. 
 statute of frauds not an inflexible one, 308. 
 what, contracts are embraced within the statute, 15, 18, 83. 
 
 section 17, broad enough to include executory contracts, 18. 
 in the several states, 74. 
 affects executory contracts, 15. 
 
 includes auction sales, 18. , 
 
 contracts void when, if the statute is not complied with, 21, 399. 
 English rule as to executory contracts, 39. 
 executory contracts within the statute, 39. 
 " allowed to be good,'' words of the statute criticised and 
 
 construed, 10, 10, n. 3. 
 certain words of the English statute, 25. 
 language of the statute the best exponent of the intention of the 
 
 law makers, 22, 46. 
 poets as exponents of the law, 22. 
 
 harmony of the decisions under the statute, 24. 
 decisions give expression to intention, 24. 
 states, statute of, as to sales of goods, etc., 25, 220. 
 statute respects a sale, 46, 77. 
 
 statute of Iowa uses the word "delivered," 397, n. 5. 
 agreement of party to put his goods in condition for delivery falls 
 
 within the statute, 46, 60, 64, 64, n. 3, 65. 
 conditional sales generally, 333, 338. 
 rule as to whether a contract is within, 77, 78. 
 sale of marketable articles, 77, 86, 88. 
 
 statute requires more than an oral agreement to deliver, 62. 
 vendee must accept and receive, 283, n. 2, 287. 
 agreement for a mechanical construction, not within, 106. 
 nor where work and labor is done and materials furnished, 77, 
 
 95. 
 where the labor is an incident, it is a sale, 32, 182, 187, 192, 250, 
 
 252. 
 otherwise, if not properly a subject of sale, 73. 
 Towers v. Osborne, considered good law, 77. 
 Lord Loughborough's opinion of that case, 77. 
 articles in existence, statute applies, 31. 
 relates to contracts for the actual sale of goods, 80. 
 of goods in solido, 77. 
 construction of contracts in the states, 30. 
 statute of some states assumes the goods to be in actual existence, 
 
 77, 103. 
 what acts will bring case within the statute, 41. 
 
000 SALES. 
 
 STATUTE OF FRAUDS — continued. 
 
 statute never construed to effect fraud, 30S. 
 
 conflict of authority as to what contracts are within statute, 88. 
 
 "sale of any goods," words construed, 103. 
 
 elements, proportion of, composing the chattel immaterial, in 
 determining whether contract within the statute, 90. 
 
 goods to be shipped or transported, case not taken out of the 
 statute by that fact, 84. 
 even where larger price is to be paid, 85, 86. 
 where goods are a part of general stock, 86. 
 
 Garbutt v. "Watson, enunciates the new English rule, 75, 86. 
 
 rule of a noted case rejected, 80, 85. 
 
 policy of early cases as to executory contracts, wrong, 80, 88. 
 
 instance where statute held not to apply to, 81. 
 
 Lord Mansfield's decision, apology for, 83. 
 
 application of the statute, rule of, 83. 
 
 contracts to be executed at a future day, 75, 83. 
 subject of surprise that executory contracts were ever decided to be 
 without the statute, 75. 
 
 statute does not apply where work is done for a chattel, 118. 
 
 vendor protected by the statute in certain cases, 66. 
 
 services may be recovered for, though contract void, 129. 
 Justice Blackburn's opinion of construction of contracts, 88. 
 
 equity will relieve from fraud, 308. 
 shares of stock, embraced within the statute, 144, 145. 
 "goods," shares of stock are, 139, 150. 
 
 rule in England as to, 142. 
 
 court of chancery once held shares within, 141. 
 
 a test case, English bench divided, 140, 140, n. 2. 
 
 case of Massell v, Cooke, 141. 
 
 leading cases in England, 139. 
 
 shares of stock, choses in action, without the statute, 139. 
 
 the same as to documents of title or incorporeal rights, 139. 
 American decisions as to shares of stock being within the statute, 
 
 139, 142, 144, 149. i 
 
 language of the statute of different states, 139. 
 intention of the statute, 144, 145. 
 
 statute should not be narrowed by rigid construction, 145. 
 consonant with common sense, 149. 
 
 weight of authority declares shares to be within the statute, 145. 
 reason and sound policy of, 144. 
 
 variant decisions as to shares of stock being within the statute 139. 
 statute ^applies where several purchases are made at a given sale 
 amounting in the aggregate to more than the amount mentioned 
 in the statute, 235. 
 
INDEX. 601 
 
 STATUTE OF FRAUDS — continued. 
 
 statute satisfied in cases of symbolical or constructive delivery, 254 
 to 332. 
 
 (See Symbolical Delivery.) 
 
 statute satisfied where goods are ordered on "moderate terms," 223. 
 
 where price is implied in the contract, 218, 220. 
 
 " at the time," as to payment, 371, 334. 
 
 a sale under the statute is void at the option of the parties, 206. 
 
 statute does not affect a parol license in vendee to enter upon land 
 of the vendor to remove produce or timber, 201, 203. 
 
 of rescission of a sale, 301. 
 
 proof of a contract, and of compliance with the statute, when ques- 
 tion arises, 446. 
 
 growing crops, fructus industriales, not within, 164. 
 
 (See Growing Crops.) 
 
 " earnest" not used in the statute of many states, 360. 
 
 statute does not condemn a sale in any case, 364. 
 
 (See Earnest and Part Payment.) 
 
 STATUTES. 
 
 statute-books are episodes of history. 1. 
 foot-prints of legislation, 1. 
 memorials of progress, 1. 
 
 all receive judicial construction, 1. 
 letter of, sometimes disregarded, 1. 
 consist of two parts, 1. 
 
 instrumental in regulating matters of commerce, 2. 
 they regulate private rights, 2. 
 enacting words and preamble, 2. n. 2. 
 before time of memory, 23. 
 since time of memory, 23. 
 " new statutes," what are, 23. 
 what is statute law, 23. 
 what is the spirit of, 21. 
 
 language of, the best exponent of the intention of the law-mak- 
 ers, 22. 
 lex scripta and lex non scrijda, 23. 
 construction of statutes by Lord Coke, 27. 
 how construed, 2T. 
 best judges of, 27. 
 (See Statute of Frauds.) 
 
 STEWART, J. 
 
 opinion of, as to contracts for the sale of growing fruit as affected 
 by the statute of frauds, 176. 
 
 STONE, J. 
 
 opinion of, as to pleading the statute, 591. 
 
602 SALES. 
 
 STORY, J. 
 
 opinion of, as to contracts for the sale of goods, 32. 
 as to the place of contract, 607. 
 
 SYMBOLICAL DELIVERY. 
 
 constructive and symbolical delivery, meaning of, 254, 254, n. 1. 
 
 distinction between, 326. 
 
 what is a constructive receipt, 249, 271. 
 
 deduction from the cases, 326. 
 
 " order," on warehouseman, 298, 331. 
 
 " wine," delivery of, 254. 
 
 " granite," delivery of, 254. 
 
 ponderous articles, 254, 327. 
 
 marking timber, effect of, 254. 
 
 symbolical delivery, 328. 
 
 statute satisfied in symbolical delivery, 326. 
 
 meeting of minds necessary, 326, 330. 
 
 rule of constructive delivery, 326, 326, n. 2, 328. 
 
 court to determine sufficiency of symbolical delivery, 326a. 
 
 jury to pass upon constructive delivery, 327. 
 
 verdict may be set aside by the court, when, 326a. 
 
 statute when satisfied in delivery of ponderous articles, 327, 
 328. 
 
 " logs in a boom," delivery of, 327, 329. 
 
 manual delivery, when necessary, 327, n. 3, 328. 
 
 " holes of brick," sale of, intermingled with different kinds, 
 328. 
 
 delivery of " one brick," effect of, 328. 
 
 vendee may retain whole to select the kinds bought, 328. 
 Elbert, C. J., opinion of, as to symbolical delivery, 339. 
 
 " brick in a kiln," what will amount to delivery of, 329. 
 
 actual delivery, when impracticable, 329. 
 
 " lumber in a raft," where the vendee assumes dominion over, 
 329. 
 
 what will amount to control over goods, 329. 
 " keys," delivery of, when sufficient to satisfy the statute, 330 and 
 
 330, n. 2, 332. 
 case of Gray v. Davis, involving symbolical delivery, 330. 
 keys, where vendee directs clerk of vendor to hold for him, a sym- 
 bolical delivery, 330. 
 constructive delivery, examples of, 330, 332. 
 when delivery and acceptance conclusive, 330. 
 
 order on warehousemen, effect of, 312, 331. 
 
 cotton, delivery of; case of King & Clopton v. Jarman, where 
 cotton was sold by sample, 331. 
 
 Eakin, J., opinion as to symbolical delivery, 331. 
 
INDEX. 603 
 
 SYMBOLICAL DELIVERY — continued. 
 
 when is receipt and acceptance complete under such delivery, 
 
 331. 
 delivery symbolical, complete though price is not ascertained, 
 331. 
 example of symbolical delivery when price to be ascertained, 331. 
 test to determine whether goods have passed to the vendee, 331, 
 
 n. 1. 
 constructive acceptance and delivery must be shown to be unequiv- 
 ocal, 332. 
 delivery of key of warehouse, sufficient, 332. 
 constructive delivery, to be valid, must deprive seller of all lien, 
 
 332. 
 quality and quantity, right to object to, 332. 
 
 " sheep branded " will amount to symbolical and constructive de- 
 livery, 332, n. 1. 
 jury to pass upon symbolical delivery, 332. 
 (See Receipt and Delivery.) 
 TELEGRAPH, CONTRACTS BY. 
 
 a telegram, equivalent to a letter, 454. 
 
 construed and determined in the same way, 455. 
 
 subject-matter must be mentioned in a telegram, 457, 458. 
 
 intent and object considered in, 454. 
 
 meeting of minds on the subject of the contract, 461. 
 
 telegrams, how far written evidence of a contract, depends upon 
 
 circumstances, 454, 461. 
 acceptance may be by circumstances, 461. 
 
 telegrams deemed contracts in writing, by express statute of cer- 
 tain states, 453. 
 California, statute of, as to contracts by telegraph, 453. 
 Nevada, statute of, 453. 
 Oregon, statute of, 453. 
 Utah, statute of, on the same subject, 453. 
 
 the telegram must contain the essentials of a contract, 454. 
 
 a case of contract by telegraph, 455. 
 
 "overt act," necessary, may be in various ways, 455, 461. 
 
 of acceptance of offer, 455, 456. 
 
 where acceptance not known until after attempted revocation, 
 
 460. 
 price, must be mentioned, 454. 
 and to whom goods sold, 454. 
 
 when is a bargain struck, in contracts by telegraph, 455. 
 bargain being struck, cannot be countermanded, 455. 
 " was the intention manifested," is the question which arises, 
 
 455. 
 what will show this, 455. 
 
604 SALES. 
 
 TELEGRAPH, CONTRACTS BY — continued, 
 case where several telegrams are involved, 456. 
 telegrams insufficient to make out a contract, when, 456, 458. 
 telegram that " goods have been sold," is not equivalent to saying 
 
 that the purchaser will take the goods, 456. 
 case of Watt v. Wisconsin Cranberry Company, involving a con- 
 tract by telegraph, 457. 
 non-delivery of a telegram, effect of, 457, 460 
 rules applicable to a memorandum apply to a contract by telegraph, 
 
 457, 463. 
 insufficient telegram, example of, 458. 
 case of Trevor v. Wood, as to a contract by telegrams and letters 
 
 combined, 460. 
 what will amount to a consummation of the contract, 461. 
 letter accepting proposition by telegraph, 461. 
 silence deemed an acceptance, when, 461. 
 
 presumptions when parties agree to contract by telegraph, 461. 
 subscription, what sufficient by telegraph, 461. 
 where order is given by telegraph for goods, and they are shipped 
 
 by usual carrier and lost, whether an acceptance, 462. 
 what part of the terms must be in the contract, 462. 
 memorandum need not be written at the time and may be on sep- 
 arate pieces of paper, 462. 
 property, telegram must show the, 462. 
 
 ambiguous telegrams will not satisfy the statute, 462. 
 rule of construction of telegrams, 462. 
 signature to the telegram. 
 
 where original is signed by the party and telegraph clerk signs 
 
 the message, sufficient, 463. 
 an agent or clerk may sign, 463. 
 agents, contract by telegraph, 462. 
 
 a broker may thus make a contract for his principal, 456. 
 " abbreviations" in a telegram, may be explained, 459. 
 so in a memorandum or letter, 459. 
 parol evidence, statute disallosvs explanation as to subject-mat- 
 ter of a contract, 462. 
 not allowed to show connection of an unsigned paper with 
 
 a signed one, 462. 
 memorandum or contract not made out in such case, 462. 
 parol proof admissible to same extent in explaining' con- 
 tract when made by telegraph as by letter, 459. 
 
 TENTERDEN, LORD. 
 
 his act in 9 Geo. IV. , 14. 
 reason for the act, 219. 
 use of word " value," 14. 
 his act applies, when, 89. 
 
INDEX. 605 
 
 TENTERDEN, LORD — continued. 
 
 provides for executory contracts, 14, 82. 
 law unsettled until this act, 66, 89. 
 object of the act, 14. 
 
 substituted word "value" for " price," 25, 
 act of, and seventeenth section to be read together, 14, 219. 
 no act in the United States li"ke it, 14, n. 1. 
 
 Lord Tenterden's ideas of construction of the statute of frauds, 21. 
 Justice Talfourd's opinion of Lord Tenterden's decisions, 21, n. 1, 
 "reasonable," use of the word by, 21, n. 1. 
 
 his act declaratory of the statute of frauds in certain states, recog- 
 nized, 25 n. 1 . 
 application of Lord Tenterden's act, 32. 
 construction to be given to the statute, 76. 
 when is a contract not governed by his act, 89. 
 (See Authorship of the Statute of Frauds.) 
 
 THOMPSON. J. 
 
 opinion of on the law of contracts by bought and sold notes, 509. 
 
 TIMBER AND TREES, GROWING. 
 
 doctrine as to growing timber before the statute of frauds, 180. 
 are standing trees rooted in the soil personalty or realty, 178. 
 
 contract of vendor to cut timber on his land and deliver it into 
 cord-wood, not within the statute, 179, 182, 183, 184. 
 so of cut timber, 94, 95, 179, 184. 
 
 parol contract valid in such cases, 179, 182. 
 verbal contract for timber, within the statute, 94. 
 " peat bed," delivery of load from, is personalty, 182. 
 "sand bank," delivery of load from, the same, 182. 
 subject-matter not existing in goods, but to be converted into 
 
 that state by vendor, within the statute, 184. 
 labor bestowed in removing subject-matter the contract does 
 not take case out of the statute, 180, 184. 
 courts have experienced embarrassment in determining contracts 
 
 for the sale of trees; Colt, J., opinion of, 181, 195. 
 Coleridge, C. J., opinion of, on the same subject, 95. 
 intention of parties largely govern in contracts for timber, 179, 181. 
 interest in land not intended, when, 212. 
 oral contract for trees to be removed in a stated time construed, 
 
 180, 181, 186. 
 words construed according to their relation to the subject, 181. 
 trees severed by vendee vest in him, 198, 205. 
 they are then personalty, 179, 182, 212. 
 when severed by instrument in writing, 179, 205. 
 unless trees are to remain, so as to receive growth, a contract 
 for, is of personalty, 180. 
 
606 SALES. 
 
 TIMBER AND TREES, GROWING— continued. 
 
 otherwise where they are to receive sustenance from the soil, 
 
 180. 
 writing not necessary where vendor is to cut timber and deliver 
 
 the same in the shape of logs, 186, 192, 212. 
 oral agreement to cut railroad ties valid on delivery, 1S7. 
 where they are delivered as the work progresses^ 187. 
 what will amount to a delivery, 187, 212. 
 title passes as soon as delivered at place agreed, 187. 
 contract within the statute where vendor agrees to furnish ma- 
 terials, opinion of Johnson, J., 187. 
 criterion, in such cases, 187. 
 where the labor is for the vendee, 187. 
 
 where timber is to belong to vendee as soon as severed, 187, 205. 
 when title passes in such cases, 187. 
 
 memorandum not necessary, where A. tells trees standing on his 
 land to B., and B. sells such trees as are not removed and still 
 standing to A., 188. 
 in contracts for sale of things attached to the soil, 212. 
 possession by force of law, eo instanti, passes title; Le Grand, C. J., 
 
 opinion of, on the subject, 188. 
 statute o£ Maryland, construed, 188. 
 cases of Ellison v. Brigham and Smith v. Surman, 183. 
 where " butternut trees " are to be cut into logs, case not taken out 
 
 of the statute, 183. 
 trees cut into logs, not a manufacture, 183, 186. 
 Pierpoint, J. , opinion of, as to contracts to cut and deliver trees in a 
 
 changed condition, 183. 
 right to reject logs so cut, acceptance implied, when, 185. 
 sale of logs in yard of third person, effect of, 185. 
 cases of Smith v. Fisher and Gorham v. Fisher contrasted, 185. 
 standing trees cut into logs not a contract of sale, 186, 193. 
 damages on refusal to deliver, 186. 
 license by parol, amounts to permission to do acts on another's land 
 
 without possession of any estate therein, 181. 
 when in writing, conveys an incorporeal right or easement, 181. 
 interest in land, contract is. for, when vendee is to receive profit 
 
 from the growing surface, 180, 181, 190, 191. 
 or remain for a time in the ground, 178, 180, 204. 
 surrounding circumstances govern, when, 178. 
 when timber to be cut immediately, 204. 
 when vendee is to cut timber on vendor's land, an interest in land, 
 
 95, 182. 
 effect of a grant of a thing, 181. 
 
 actual receipt of price constitutes a sale of timber, 205. 
 as to consideration for standing trees, 212. 
 
INDEX. 607 
 
 TIMBER AND TREES, GROWING — continued. 
 
 case of Banton v. Shorey, where trees cut into knees were removed 
 
 before mortgage was recorded, 212. 
 where mortgage was recorded before notice, 212. 
 contract to clear the trees and sow the land, effect of, 210. 
 trees raised for sale and transplantation, no part of the realty, 201. 
 severance in such case may be by vendee or vendor, 201. 
 part payment in sale of trees, 201. 
 nursery trees and shrubs, articles of trade, 202. 
 sale of goods, produce or other thing annexed to the freehold, 
 
 whether severed by the vendor or vendee, under a special license, 
 
 is, 203. 
 (See Timber, Growing, to be Severed by the Vendee.) 
 
 TIMBER, GROWING, TO BE SEVERED BY VENDEE. 
 
 contract to cut standing trees into logs is within the statute, 192. 
 
 where the contract is by parol, 94, 192. 
 
 " ash bending-stuff," agreement to cut and deliver, at a stated price, 
 
 189. 
 personalty, sand from a sand bank, 182. 
 and " peat " from a peat bed, 182. 
 
 personalty and realty, contract for, on one piece of paper, 
 
 189, n. 1. 
 contract for personalty not vitiated by not complying with the 
 statute relating to realty, where the two are written on one 
 paper, 189, n. 1. 
 vendee, contract whereby a vendee is to enter upon land and cut 
 
 and carry away timber, at a future time, is of an interest in land, 
 
 95, 190, 192, 194. 
 rule not always regarded, 190. 
 
 rule as to sale of standing trees rooted in the soil, 190. 
 natural growth of the soil not emblements, 194. 
 contract in writing, for timber, with right in vendee to remove 
 
 same, 194, 206. 
 conflict of authority, as to sale of standing trees being realty, 194, 
 
 194, n. 1. 
 Bidle, J., opinion of, as to whether trees rooted in the soil are per- 
 sonalty or not, 194. 
 interest in a contract for the sale of standing trees ; Ryan, C. J., 
 
 opinion of, 195. 
 chattels personal, trees become, when actually severed, 194, 196. 
 immediate severance of trees, when there is to be in parol contract, 
 
 191, 206. 
 when time of severance indefinite, 191. 
 Coleridge, C. J., opinion of, on the subject, 191, 
 " as soon as possible," trees to be removed, effect of, 191. 
 
60S SALES. 
 
 TIMBER, GROWING, TO BE SEVERED BY VENDEE — continued. 
 " warehouse for trees," land is a mere warehouse where trees are to 
 
 be removed immediately, 191. 
 rule different if trees are to derive a benefit from the soil, 191. 
 statute, distinctions as to whether a sale of growing trees is within, 
 
 192, 196. 
 action of replevin in the cepit, 196. 
 
 Paige, J., opinion of, as to unsealed contracts to convey timber, 196. 
 conveyance of trees and term "conveyance" defined, 196. 
 parol, trees annexed to the. land, not virtually nor in contemplation 
 
 of law, severed, cannot be sold by, 196. 
 so an oral contract to buy stumpage, is void, 193 
 of contract for " Norway logs," of specified sizes, at agreed prices, 
 
 what, 193. 
 writing required, 193. 
 case of "Wetinore v. Neuberger, a "lumbering transaction," action 
 
 on a note given in, 193. 
 interest in land, contract in relation to the sale of trees, 192. 
 sale of basswood trees, price agreed upon, to be paid when cut and 
 
 carried away ; case of Green v. Armstrong, 193. 
 Beardsley, J., opinion of, as to distinction between personalty and 
 
 realty in sale of standing trees, 192. 
 damages cannot be recovered where vendor of trees delays the work 
 
 of removal ; case of Lawrence v. Smith, 197. 
 Daniels, J., opinion of, as to contracts for the sale of timber, 197. 
 (See Timber and Trees, Growing.) 
 
 TIME. 
 
 "at the time," payment must be made at the time of the making of 
 
 the contract, 290, 367, 376, 385. 
 (See Earnest and Part Payment.) 
 auctioneer must make the entry of sale in his sale-book at the time 
 
 of the sale. 526, 528, 532, 581. 
 (See Auction and Auctioneers.) 
 
 TOMBSTONE OR MONUMENT. 
 
 a tombstone, held to be a chattel, 57. 
 
 case of Mead v. Case, 57. 
 
 vendor's agreement to place a tombstone in a grave-yard, does not 
 
 change its character from one of sale to one of manufacture, 57. 
 a monument with an inscription upon it, is not a marketable thing, 
 
 56. 
 subject of special order, 56. 
 contract for a marble monument, with an inscription to be placed 
 
 upon it, held to be a contract of manufacture, 54. 
 and takes the contract out of the statute, 54. 
 
^ INDEX. '609 
 
 UTAH. 
 
 statute of Utah as to contracts by telegraph, 453. 
 (See Telegraph, Contracts by.) 
 
 VAN HOESEN, J. 
 
 opinion of, on delivery of goods to a carrier selected by the vendor, 
 354. 
 
 VENDEE. 
 
 vendee has the right to inspect goods after delivery, 283. 
 in sale by sample, vendee must pronounce goods satisfactory, 309. 
 may reject goods, when, 282a. 
 vendor may be bailee of vendee, 262, 264, 267, 273. 
 vendee may have accepted although goods remain in vendor s pos- 
 session, 263. . 
 option of, to receive goods sent by carrier, 343. 
 vendee selling goods without inspection, tantamount to acceptance, 
 
 282. 
 or offers goods for sale before acceptance, 324. 
 goods may be selected by the vendor for the vendee, 270. 
 vendor may act as agent of vendee, 263. 
 vendee, where risk of loss is in him, is liable, 120. 
 vendee liable in case goods are shipped under a valid contract and 
 
 lost, 312. 
 if vendee fails to take goods sold at auction, vendor may sell them 
 
 and recover damages, 52. 
 vendee may sign a contract and broker may deliver it to vendor, 
 
 and, although different from the one delivered to the vendee, is 
 
 valid, 503. 
 vendee liable, when goods are shipped to him under a valid contract, 
 
 853. 
 
 VERMONT. 
 
 shares of stock within the statute, 146. 
 
 VERPLANCK, SENATOR. 
 
 opinion of, on the meaning of the word " subscribed," 474. 
 
 WAITE, J. 
 
 opinion of, as to shares of stock being within the statute of frauds, 
 151. 
 
 WALTON, J. 
 
 opinion of, why shares of stock are embraced within the statute of 
 frauds, 149. 
 
 WALWORTH, CHANCELLOR. 
 
 opinion of, upon the requirements of the statute as to signature, 
 474. 
 
 39 
 
610 SALES. 
 
 WILDE, J. 
 
 opinion of, as to promissory notes being within the meaning of the 
 statute of frauds, 152. 
 
 WISCONSIN. 
 
 rule of construction of contracts in, 34. 
 
 "accept and receive," reads the statute of frauds, 290. 
 
 rule as to acceptance, 290. 
 
 WOODRUFF, J. 
 
 opinion of, upon subsequent payment under an oral contract, 378. 
 
 WORDEN, J. 
 
 opinion of, as to pleading the statute of frauds, 592. K 
 
 as to the promissory note being earnest or part payment, 390. 
 
 WORK AND LABOR. 
 
 distinction between contracts for work and labor and for goods, 
 
 30, 93. 
 between work and labor and a sale, 32, 66. 
 contract for work and labor, when, 92, 97, 106. 
 rule for determining what contracts are of sale and what for work 
 
 and labor, 65, 96, 104. 
 test laid down by Pollock, C. B., 90. 
 his test not supported by some oases, 90. 
 early cases of contracts for work and labor, 74. 
 employment to point out the proper mode of attaining an object 
 
 not within the statute, 92, 95, 97. 
 for the manufacture of cut nails, and damages for non-delivery of, 
 
 97. 
 sale of goods, where work and labor to be blended, 69, 116. 
 sale of lumber not of a kind usually kept, is a contract for work and 
 
 labor, 127. 
 so a contract to change an article in form, 74. 
 labor and materials, contract for, 89, 106. 
 labor and skill, when the prime consideration, 66, 89. 
 contract for a mechanical construction, 106. 
 a case sui generis, Clay v. Yates, a contract to print a book, 89. 
 criterion, whether work is the essence of the contract, 89. 
 opinion of Justice Stephen, 89. 
 printer's work not within the statute, 91. 
 one entire work, when, 91. 
 where printer supplies material, 89, 91. 
 action and lien of the printer in such cases, 89, 91. 
 of a tailor's lien for work, 91. 
 
 chattel made for a party, when workman uses his own materials, 93. 
 may dispose of the title and maintain action for price, 93. 
 during progress of work no right of action vests, 93. 
 
INDEX. 611 
 
 WORK AND LABOR — continued, 
 ■when completed, 93. 
 ■when not a subject of sale, 92. 
 when action for goods cannot be maintained, 38. 
 combined contract for work and labor,- and goods sold, 67. 
 " new f angled dress " made by a tailor, contract for work and labor, 
 
 67. 
 an artist's contract to deliver paintings of a novel kind, 67. 
 where designs are suggested by buyer, 67. 
 what contracts not within the statute, 67. 
 work of art, contract for work and materials, 89. 
 where materials and skill are divided, 90. 
 " composition of a picture," what, 90. 
 materials of no importance, 89. 
 criterion in such case3, laid down by Martin, B., 89. 
 valuable'citations involving cases for art work, 124. 
 work and labor, cannot sue for, when, 88. 
 special action on the case, when, 93. 
 contract to manufacture flour, 58a, n. 2. 
 contract of hiring, where work is to be done for vendee, 31. 
 notice of completion of work, binds vendee, 99. 
 title passes to vendee, when, 105. 
 special order, contract to make an article under, 105. 
 
 where the contract is void, the party who has done the work 
 may recover for services, 129, 131. 
 case of work and labor for a chattel, 118. 
 
 to constitute a contract for work and labor, not necessary that 
 the work should have been done on materials of the defend- 
 ant, 93. 
 
 different views on thesubject, 93. 
 
 contract for wheat un threshed, is for work and labor, 82. 
 
 wheat to be cleaned before delivery not a contract for, 64. 
 where vendor does work for himself in fulfilling a contract, 44, 94, 
 
 127. 
 rule expressed as to contracts for work and labor, 67. 
 instance of a sale, 63. 
 where part of articles have been furnished, 127. 
 
 WREN, SIR CHRISTOPHER. 
 
 reference to his architectural productions, 56.